2021 Procurement Review: Contract Disputes

In Ahtna Constr. & Primary Products Co., LLC, the CBCA: (i) dismissed a Type I Differing Site Conditions claim because the contract made no representations as to the subsurface conditions at the work site and because it was foreseeable that frozen earth and material might be encountered there; (ii) denied the Government's motion to dismiss a defective specifications claim, holding that it was not merely a recast of the differing site conditions claim; and (iii) denied the Government's motion to disallow an amendment to the complaint because, contrary to the Government's contentions,  it did not include operative facts not present in the original claim to the Contracting Officer.

In Ahtna Constr. & Primary Products Co., LLC, the CBCA: (i) dismissed a Type I Differing Site Conditions claim because the contract made no representations as to the subsurface conditions at the work site and because it was foreseeable that frozen earth and material might be encountered there; (ii) denied the Government's motion to dismiss a defective specifications claim, holding that it was not merely a recast of the differing site conditions claim; and (iii) denied the Government's motion to disallow an amendment to the complaint because, contrary to the Government's contentions,  it did not include operative facts not present in the original claim to the Contracting Officer.

In Wise Developments, LLC, the CBCA denied the Government's motion to dismiss an appeal from a default termination as untimely because the Government's termination letter was not a "final decision," neither labeling itself as such nor notifying the contractor of its appeal rights.

In SkyQuest Aviation, LLC, the ASBCA held that: (i) a contractor's appeal from a termination for default alleged only that the Government had not met its burden of proof and, therefore, was not an affirmative defense and did not require an initial claim to the Contracting Officer; (ii) the Board lacked jurisdiction over a non-monetary claim in excess of $100,000; and (iii) the Board also lacked jurisdiction over a claim for an allegedly defective CPAR absent evidence the claim had first been presented to the Contracting Officer for a decision.

In Lockheed Martin Corp., the ASBCA dismissed a claim for declaratory relief because there was no "live dispute" between the parties.

In Hudson General Contractor, Inc., the CBCA dismissed an appeal for lack of standing because the contractor had been administratively terminated as a corporation under state law and subsequently had been permanently dissolved with no right to reinstatement.

In Globe Trailer Manufacturing, Inc., the ASBCA held that, while the contractor's original termination settlement proposal (TSP) was not a claim, its TSP supplement, which the contractor's counsel had submitted to the Government's counsel who had forwarded it to the Contracting Officer, was a CDA claim because the cover email noted that the contractor's attorney had "attach[ed] the supplemental materials reflecting the sum certain sought in Globe’s constructive change claim, along with a certification of the updated amount. Globe’s constructive claim was included in its June 2017 TSP and also addressed in its most recent Position Statement provided to the government on February 4, 2020 (which I’ve attached here as well for your convenience). . . . We look forward to receiving the Contracting Officer’s Final Decision on or before July 13, 2020. " 

In Transdev Services, Inc., which involved a non-CDA contract, the ASBCA denied the Government's motion to dismiss appeals for lack of a Contracting Officer's decision because the Contracting Officer had not issued decisions on the claims within a "reasonable" time (in this case a bit more than 4 months).  

In Mubashir Ali, the CBCA held it lacked  jurisdiction over an appeal from a default termination because the agency had converted it to a termination for convenience.

In BAE Systems Ordnance Systems, Inc., the ASBCA denied the Government's motion to dismiss an appeal as untimely because the contractor had explicitly and consistently declined to request a Contracting Officer's decision on its various REA submissions over a lengthy period of back-and-forth correspondence with the Contracting Officer so that, even considering the CAFC's holding in the Hejran Hejrat case, these REAs had not been converted to a claim until the contractor explicitly submitted a claim for a decision by the Contracting Officer. 

In GSC Construction, Inc., the ASBCA denied the Government's motion to dismiss, holding that the Board would not be required to make factual determinations concerning the Governments' allegation of fraud in order to resolve the issue on appeal, which was simply one of contract interpretation.  

In L3 Technologies, Inc., over a dissent arguing that the mootness exception should apply, the ASBCA dismissed appeals from three Contracting Officer's final decisions as moot because the decisions had been withdrawn and the Government averred that they would not be reissued for any of the contract years they had covered, which meant neither the "voluntary cessation" exception nor the "capable of repetition yet evading review" exception to the mootness doctrine applied.

In Blanchard's Contracting, LLC, the ASBCA held it lacked jurisdiction over: (i) a claim involving the contract drawings that arose from different operative facts than those previously presented to the Contracting Officer for a decision; and (ii) a delay claim that involved different allegations and covered a different time period from the claim presented to the Contracting Officer. 

In URS Federal Services, Inc., the ASBCA (i) struck a claim for breach of implied duty of good faith and fair dealing from the Complaint because it had not been presented to the Contracting Officer and (ii) dismissed claims for unpaid invoices because they were not submitted to the Contracting Officer within six years of the date they accrued.

In GSC Construction, Inc., the ASBCA denied the Government's motion to dismiss, holding that the Board would not be required to make factual determinations concerning the Governments' allegation of fraud in order to resolve the issue on appeal, which was simply one of contract interpretation.  

The ASBCA dismissed an appeal by Northrop Grumman Corp. for lack of jurisdiction because the letter  from the Contracting Officer on which the appeal was based was merely a response to an earlier letter from the contractor and did not demand anything at all from the contractor, did not identify itself as a decision, and did not notify the contractor of its appeal rights.  

In Vanguard Business Solutions, the CBCA denied the Government's motion to dismiss for lack of jurisdiction because the appellant alleged a breach of the contract identified in the Contracting Officer's message to the appellant stating "[y]ou have been awarded a contract," not, as the Government contended at the Board, a bill of lading.  

In Nauset Constr. Corp., the ASBCA held that: (i) where the Contracting Officer alleged that claims involved fraud only after the contractor had appealed a deemed denial to the Board, the Board retained jurisdiction because a Contracting Officer cannot by unilateral action deprive the Board of jurisdiction once it has attached; and (ii) the contractor failed to establish that it had been prejudiced by the Contracting Officer's failure to include the notice of the 90-day appeal period in a decision terminating a contract for default because the record showed the contractor's attorney had researched the issue extensively  at the time. Subsequently, the Board denied the contractor's motion for reconsideration.

In Arthur Jean Pierre, the CBCA dismissed an appeal from a default termination because it had been converted to a termination for convenience, rendering the appeal moot.

In Kamaludin Slyman CSC, the ASBCA held, inter alia, that: (i) the portions of consolidated appeals alleging a breach of the duty of good faith and fair dealing must be dismissed because they had not previously been submitted to the Contracting Officer for a decision; (ii) a claim that was not certified for more than six years after it accrued must be dismissed as outside the limitations period; (iii) the contractor could not cobble together statements from various portions of its claim (none of which made one of the assertions required by the CDA) to form an implied certification; and (iv) the Government was not required to notify contractor of the lack of a certification so the Government's silence could not constitute equitable tolling of the limitations period.

In Satterfield & Pontikes Construction, Inc., the ASBCA denied the Government's motion to dismiss an appeal from a default termination because the Contracting Officer's decision withdrawing the default termination decision was not unequivocal, and, regardless of the existence of a settlement agreement between the parties, triable issues of fact remained as to whether the Government had breached its implied duty of good faith and fair dealing.

The ASBCA dismissed an appeal by Najmaa Alshimal Co. for lack of jurisdiction because the contractor's claim to the Contracting Officer did not include a sum certain (indeed did not include any amount).   

In Art Property Assocs., LLC, et al., which involved many consolidated appeals, for each appeal, the CBCA addressed the contractor's allegations that the CDA limitations period had expired by analyzing whether the unilateral supplemental lease agreements issued by the GSA to the various contractors constituted a Contracting Officer's decision on a government claim for reimbursement of overpayment of taxes by resolving all issues of liability and of damages administratively, rendering the case ripe for judicial review. The CBCA also denied all the contractor's claims for other than CDA interest.

In ECC International Constructors, LLC, the ASBCA dismissed discrete, monetary sub-claims for lack of jurisdiction because the contractor only specified one, bottom-line sum certain for the total of its claim as a whole. Subsequently, the Board denied the contractor's motion for reconsideration.

In Halbert Constr. Co., the ASBCA, inter alia: (i) denied a motion to dismiss for failure to state a claim because reading the Complaint together with the underlying claim to which it refers demonstrated that the contractor had pled allegations which, if proven, would establish a breach of contract; and (ii) denied a motion to dismiss because the theories of recovery presented on appeal arose from the same operative facts as those on which the original claim was based.

In JAAAT Technical Services, LLC, the ASBCA held, inter alia, that: (i) the contractor had failed to convert several REAs that were clearly, and repeatedly labeled as such, into claims, especially where the contractor, by converting another REA into a claim, had demonstrated that it knew how to do so; (ii) the contractor failed to certify certain submissions to the Contracting Officer that exceeded $100,000, and, therefore, the Board lacked  jurisdiction over appeals involving those submissions; (iii) the Contracting Officer's unilateral mod reducing the contract price by a specific amount after the parties were unable to agree on (and disputed) the contents of the punch list constituted a government claim, and the mod's failures to identify itself as a Contracting Officer's decision and to notify the contractor of its appeal rights, plus the Government's actions after publishing the mod all combined to excuse the contractor's failure to appeal it within 90 days; (iv) the Government's motion for summary judgment on certain other claims was meritorious because the contractor had executed a document releasing those claims.

In Knight's Constr., the CBCA denied the Government's motion to dismiss an appeal from a default termination as untimely because the agency repeatedly had provided the contractor with erroneous information concerning where to file appeal until "finally, on the last day of the filing period (. . . at 5:25 p.m. EST), via email, [the agency] provided [the contractor] with a link to the Board’s website [and a statement] that the Board’s website included information on e-filing."

In Lockheed Martin Aeronautics Co., over a dissent, the ASBCA held that a more than 30 year old precedent (Bell Helicopter Textron, ASBCA No. 35950, 88-2 BCA ¶ 20,656, aff’d on mot. for recon., 88-3 BCA ¶ 21,048) remains good law, and a unilateral definitization action by the Contracting Officer setting the price for undefinitized contract action is not a government claim and, therefore, cannot be appealed directly by a contractor, which must, instead, submit its own claim for a decision by the Contracting Officer.

In another Lockheed Martin Aeronautics Co. case, the ASBCA held that laches cannot be used by the Government as an affirmative defense to shorten the CDA's six-year limitations period for filing a claim.  

In Ultra Electronic Ocean Systems, Inc., the ASBCA denied the Government's motion to dismiss an appeal from a default termination and held, inter alia, that: (i) the Government's letter stating that it was a "notice of intent to terminate for default" was a Contracting Officer's final decision even though it lacked a notice of the contractor's appeal rights because it also stated: "effective immediately and in accordance with the default and termination subject contract clauses [], [the contractor] is notified that the Government hereby exercises its right to terminate the contract in whole"; (ii) the contractor's statements in its appeal letter challenged the default termination and were not required also to aver that the termination should be converted to one for convenience; and (iii) the contractor's statement in the appeal letter that the Government should file the Complaint did not in any way vitiate the appeal.

In Northrop Grumman Mission Systems, the ASBCA denied the contractor's motion to dismiss counts in the Government's Complaint for expressly unallowable costs, holding that; (i) FAR 31.204(d) does not require the Contracting Officer first to determine whether expressly unallowable criminal legal costs can be apportioned between the cost principles at FAR 31.205-15 and 31.205-47 before he can seek their recovery; (ii) the Contracting Officer's omission of the word "expressly" in one part of his decision did not mean that Count Two in the Complaint involved a different claim because that count was based on the same operative facts; and (iii) Counts Three and Four of the Complaint were more accurately characterized as allegations that the contractor lacked a defense to Count One.  

In Betance Enterprises, Inc., the ASBCA dismissed (for lack of jurisdiction) appeals involving claims in excess of $100,000 whose certification was unsigned.

In Cherokee 8A Group, the CBCA dismissed (for lack of jurisdiction) an appeal filed at the CBCA 720 days after receipt of the Contracting Officer's decision because the decision (without being more specific) stated that the contractor could appeal to "the board of contract appeals," which was adequate notice, and the Government's failure to respond to the contractor's inquiries as to whether it had sent its appeal to the right location (it had not) was irrelevant.

In Anthony and Gordon Constr. Co., the ASBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction, holding that, although the method of calculating damages in the Complaint differed from that presented in the claim to the Contracting Officer, both were based on the same set of operative facts.  

In RocJoi Medical Imaging, LLC, a case involving contract interpretation, the CBCA held that a task order document issued under ID/IQ contract did not order services but only obligated funding against which the contractor was to invoice when services were ordered.  

In Alares LLC, the CBCA denied the Government's motion to dismiss an appeal filed under the name of a company that had novated the contract to another firm and allowed the appellant to amend its pleadings to substitute the name of the correct firm.  

In Passaran Noori Constr. Co., the ASBCA dismissed an appeal because the underlying claim had not been filed until more than a decade had passed since the no-cost termination on which it was based.  

In U.S. Pan American Solutions, LLC, the ASBCA denied the Government's motion to dismiss an appeal from a termination notice as untimely because the original notice contained an error (referring to the termination as one for convenience) which the Contracting Officer later corrected in a revised notice, thereby causing confusion as to when the appeal period should begin to run.

In Huffman Constr., LLC,  the ASBCA denied the Government's motion  to dismiss portion of the Complaint for lack of jurisdiction, holding that the allegations in the Complaint were based on the same operative facts as those previously presented to the Contracting Officer. 

In BNN Logistics, reviewing multiple cross motions for partial summary judgment, the ASBCA, inter alia, granted partial summary judgment in favor of the Government because the contractor had failed to file claims regarding certain disputed invoices within the CDA's 6-year limitations period. 

In Penna Group, LLC, the ASBCA held that: (i) the contractor's clear request for a Contracting Officer's final decision in what the contractor labeled an REA (reaffirming that label in response to a query from the Contracting Officer) meant the submission was a "claim" regardless of the contractor's characterizations; (ii) the DoD REA certification language in the "claim" was correctable and was corrected by an affidavit that was submitted after negotiations on the "claim" had reached an impasse; (iii) the Board lacked jurisdiction over an appeal of a claim that was essentially the same as an earlier claim that had been denied but which had not been appealed; and (iv) the Contracting Officer's decision was "final" and not, as the contractor alleged, dependent on the outcome of either the Board appeal or a DOL investigation.  

In 4K Global-ACC Joint Venture, LLC, the CBCA denied the Government's motion to dismiss appeals whose monetary aspects had been resolved by a settlement agreement because that agreement clearly provided they would remain on the docket until two other, related appeals were resolved.

In Anglin Consulting Group, Inc., the CBCA held that: (i) it lacked jurisdiction over a claim that the Government had failed to follow its in-sourcing policy because that claim had not previously been presented to the Contracting Officer; and (ii) the contractor could present allegations of duress and breach of the duty of good faith and fair dealing in response to the Government's affirmative defense of accord and satisfaction but must first present them to the Contracting Officer if it also wished to pursue them as affirmative claims.  

In Siemens Government Technologies, Inc., the ASBCA denied the Government's motion to dismiss the appeal for lack of jurisdiction because the appellant had made a non-frivolous allegation of the existence of a contract with the Government and the Government's contention that no such contract existed would be decided as part of the merits of the appeal.  

In Hallym Furniture Industrial Co., Ltd., the ASBCA dismissed an appeal for lack of jurisdiction because it was based on claims that a blanket purchase agreement (BPA) should be reinstated or that the appellant should recover various costs arising from cancellation of the BPA, but blanket purchase agreements are not contracts.  

In BAE Systems Land & Armaments L.P., the ASBCA held that the affirmative defense of laches is not available in CDA cases because of the legislatively enacted six-year limitations period.

In D-STAR Eng'g Corp., the ASBCA granted the  Government's motion to dismiss a portion of an appeal seeking a "penalty" at 6 per cent per annum against the Government under the Debt Collection Act because that Act provides only for penalties assessed against contractors, and the contractor's request was for punitive damages over which the Board lacks jurisdiction. 

In Tactical Network Corp., the ASBCA granted the Government's motion to strike the appellant's requests that the Board order the Contracting Officer not to take further actions and to accept the contractor's deliverables because both requested specific performance or injunctive relief, which the Board lacks jurisdiction to grant.  

In Joseph-Allen Davis, the CBCA held it lacked jurisdiction over a dispute where the appellant did not allege the existence of a contract with the Government, had not filed a claim with the Contracting Officer, and was not appealing from a Contracting Officer's decision.  

In ACC Constr. Co., the ASBCA: (i) refused to strike allegations from an amended complaint that were mere refinements of statements in the original complaint following discovery, even though the contractor did not seek leave to amend; but (ii) struck a new material factual allegation in the amended complaint that had never been presented to the Contracting Officer.  

In NUES Inc., the CBCA held, inter alia, that: (i) increasing the amount claimed in the appeal over the amount of the original claim did not divest the Board of jurisdiction because the revised amount did not involve a new claim but rather was based on the same operative facts as the original claim; and (ii) because the originally claimed amount was less than $100,000, it need not be certified even though the revised amount exceeded $100,000.  

In Globe Trailer Mfg., Inc., the ASBCA granted the Government's motion to dismiss the contractor's constructive change claims because: (i) valid claims based on a sum certain were not brought within the six-year limitations period, which was not extended by the fact that the parties were also attempting to negotiate a termination settlement proposal; (ii) there was no equitable tolling of the limitations period because no extraordinary circumstance had prevented the contractor from filing timely claims; and (iii) the Board disagreed with the CoFC's statement in Lodge Construction, Inc. that filing a defective pleading within the limitations period is sufficient for equitable tolling.

In ECC International Constructors, LLC, the ASBCA dismissed portions of the appeal because they were based on materially different, unrelated sets of operative facts and, therefore, constituted separate claims that had not previously been presented to the Contracting Officer with sums certain.  

In AECOM Technical Services, Inc., the ASBCA denied the Government's motion to dismiss for lack of jurisdiction because the appellant had made a non-frivolous allegation of the existence of a contract with the Government, and the Board has jurisdiction over a claim for tortious breach of contract as opposed to a claim for an independent tort.

In StructSure Products, Inc., the ASBCA denied the Government's motion to dismiss because the company's chief executive officer notified Board after the appeal was filed that (i) the company's project manager had the authority to file the notice of appeal on behalf of the company, and (ii) the subcontractor's attorney was properly representing the contractor before the Board pursuant to a waiver of conflict-of-interest agreement in the subcontract in a situation where the prime was sponsoring the sub's claim.  

In Kellogg Brown & Root Services, Inc., the ASBCA denied the Government's motion to dismiss because: (i) by timely appealing the Contracting Officer's decision denying the contractor's claim, the contractor effectively also appealed any affirmative government claims that were allegedly embedded in that decision; (ii) the Contracting Officer's decision did not contain valid claims for recoupment of provisional payments or liquidated damages because there was no sum certain, just a reservation of a right to collect on these issues in the future; and (iii) in the totality of the circumstances of this case, the  Government's demand letters constituted claims even though the demand letters were not identified as Contracting Officer's decisions, and the contractor had timely appealed them. In sum, the Board concluded that the contractor had "timely appealed every document that could be construed as a contracting officer’s final decision on these government claims."

In OWL, Inc., the CBCA dismissed a claim for the reduced amount of services ordered due to the pandemic because, although the parties intended to have established an indefinite quantity contract, it was illusory (lacking a guaranteed minimum). In another OWL, Inc.  decision published the same day, the CBCA dismissed another claim for a reduced amount of services ordered under a requirements contract due to the pandemic because the pandemic had effectively reduced the Government's requirements, i.e., the Government had not ordered less than its requirements.  

In Left Hand Design Corp., the ASBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction, holding that the notice quoted below, filed by an administrative assistant at the  pro se contractor: (i) expressed a present intent to appeal; (ii) was sufficient to identify which two Contracting Officer's decisions the contractor intended to appeal; (iii) expressed dissatisfaction with the decisions; and (iv) was submitted by a person who was authorized to file the appeal on behalf of the contractor:

[Appellant] requests an extension to the deadline of 17 April 2020 regarding Contracting Officer’s Final Decision and Demand for Payment of Debt. An appeal is intended regarding this final decision made by our Contracting Officer, Ms. Andrea Arapkiles. List of Contracts: N00014-10-C-0306 [and] FA8651-08-C-0155.

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In Central Diversified Contracting, LLC, the ASBCA held that, although the contractor failed to present sufficient evidence to prove its alleged delay damages or administrative hours, the Contracting Officer's interpretation of a modification as "all-inclusive" was overly broad and inconsistent with the language of the modification and conflicted with his own prior actions concerning the situation. Subsequently, the Board denied the contractor's motion for reconsideration.