Boards of Contract Appeals (ASBCA,
CBCA, PSBCA, and GAOCAB)
Jurisdiction/Standing/Timeliness/Contract Disputes Act
(CDA) Issues
In
John Blankson, the CBCA held it lacked CDA jurisdiction over an appeal from
a Contracting Officer's letter terminating a contract for
convenience even though that letter was labeled a COFD, notified the
contractor of its appeal rights, and explained that the termination was based
on certain contractor actions criticized by the Contracting Officer. Similarly, In Tesla Liliana Reyes Ramirez, the
CBCA held it lacked jurisdiction over an appeal of the termination for
convenience of a personal services contract absent a monetary claim from the
contractor.
In
Cobeal Consulting Group, an
appeal from a default termination, the ASBCA held that it lacked jurisdiction over monetary claims
for increased costs, return of withheld liquidated damages, and time extensions
because they had not previously been properly submitted as
claims to the Contracting Officer for a
decision (the contractor had submitted two, uncertified REAs in excess
of $100,000 to the Contracting Officer, one of which
concerned matters not mentioned by the contractor on appeal
and the other containing no certification at all).
In
Relyant Global LLC, the ASBCA directed the
Contracting Officer to issue a decision on a claim two months faster than his proposed date because taking nine months to issue a decision on a seven-page claim with two
attachments was unreasonable.
In
Envistacom, LLC, the ASBCA denied the
Government's motion to dismiss based on contractor's alleged
conflation of claims from two different contracts and ambiguities in
its Complaint concerning that same alleged issue because,
inter alia, the Government's own
responses to the claim and the Complaint clearly indicated the Government was not
under any misapprehension at all concerning the contract to which the claim
related or the nature and amount of the claim. The Board also denied
the contractor's
motion for a default judgment based on the Government's allegedly
deficient Rule 4 filing and its frivolous motion to dismiss
because neither is grounds for the harsh sanction of default.
In
Nanka Constr. Co., the ASBCA dismissed an
appeal that did not clearly indicate the person filing it was authorized
to do so under Board Rule 15(a) after the appellant failed to respond to
multiple Board orders to provide that explanation.
In
Boyd Atlanta Rhodes, LLC, the CBCA denied the Government's motion to dismiss
a lessor's claim for damages resulting from
alleged government changes and/or breaches that delayed the date when rents would
commence under a building lease, including the lessor's assertion of a
"cardinal delay." The Board rejected the agency’s interpretation of
the lease
as giving the agency
an unrestricted ability to make pre-occupancy changes without any cost.
In KiewitPhelps,
the ASBCA denied the Government's motion to
dismiss an appeal for the alleged lack of a claim certification because
a signature by an authorized official on a claim letter where the actual
certification language is part of an attachment to that letter is
a defective certification that can be corrected.
In
Frontline Support Solutions, LLC,
the ASBCA dismissed a subcontractor's appeal for lack of jurisdiction because the
sub lacked privity of contract with the Government in
a situation where the prime had neither sponsored the appeal nor acted as an
agent for the Government. The Board rejected the sub's argument that
there were extraordinary circumstances justifying its appeal
(the Government's continued payments to the prime despite
the Government's alleged knowledge of the prime's fraud and
insolvency).
In
Direct Steel, LLC, the ASBCA denied the Government's motion to dismiss an appeal for failure
to state a claim because, viewed in the light most
favorable to the appellant, its Complaint alleged facts
sufficient to satisfy all four elements of a superior
knowledge claim.
In
Top Level Constr. Co., the CBCA first decided that the contractor
had submitted four separate claims to the Contracting
Officer (three under
one PO and one
under a second) because they were based on different facts and theories of
recovery, and that only one of them had been addressed by
the Contracting Officer in his decision. The Board dismissed
the appeal of that claim as untimely filed. However, the
Board retained jurisdiction over the appeals of the other
three claims on the theory that they were deemed denied by
the Contracting Officer's inaction on them.
In
US Pan American Solutions, LLC, the ASBCA dismissed an appeal (that appellant conceded was filed one day late) of
a default termination notice, holding that the following language in the
notice was satisfactory: "Your company has the right to appeal this decision under the
Disputes clause at Federal Acquisition Regulation (FAR) 52.233-1."
In Stormwater Plans, LLC dba SWP Contracting & Paving,
which involved the appeal of the Government's affirmative
claim for liquidated damages in a contract for construction of an aircraft
hangar, the ASBCA denied the Government's motions to dismiss two of
the contractor's claims for their alleged failure to have previously been
presented to the Contracting Officer for a decision: (i) a claim for breach of
the implied duty
of good faith and fair dealing because it was based on the same allegations
of operative facts previously presented to the Contracting Officer
(specifically, numerous allegations that the agency's actions or inactions
interfered with the contractor's performance—including various design
issues, site conditions, and delays caused by the agency's failure to
timely review and approve the contractor's proposals); and (ii) a claim for
the
impact of defects in the Government's drawings because those allegations
would not require the Board
to consider evidence different from and unrelated to those presented in
the contractor's previous claim to the Contracting Officer.
The Board, however,
granted the Government's motion to dismiss a claim for the return of liquidated damages
for work pertaining to lightweight concrete because that claim had not
previously been presented to the Contracting Officer, even though the it
was an affirmative defense to the Government's liquidated
damages claim,
because it would involve an adjustment in contract terms and, therefore, must be
first presented as an affirmative claim to the Contracting Officer
under the CAFC's precedent in
M. Maropakis Carpentry, Inc.
In Logistics and Rental Car SARL,
the ASBCA granted the Government's motion to
dismiss an appeal as tardy because the appellant did not dispute the date it
had received the emailed decision from the Contracting Officer, and
the appellant's President's
illness and emergency operation did not excuse an appeal that was late
(by more than 400 days).
In 5
Stones Intelligence, Inc., the CBCA granted a
joint motion to dismiss an appeal because the stipulated facts established
that the
contractor (a) never submitted a certified claim, (b) made its
submission to someone other than the Contracting Officer, and (c) initiated
its appeal based on that other individual's response.
In Comp Environmental, Inc.,
which involved a fixed-price contract to rehabilitate a parking area,
the CBCA denied the Government's motion to dismiss
the appeal for failure to state a claim, holding that the appellant
had plausibly alleged that
extra work to raise the elevation of a levee could not be discerned by a
reasonable bidder from the contract documents, which also required
the Government to obtain necessary permits so that the "Permits and
Responsibilities" clause did not shift responsibility for obtaining
permits or liability for permit conditions
to the contractor.
In
Walsh Turner Joint Venture II, although the ASBCA denied the Government's motion to dismiss
the appeal for lack of jurisdiction
due to the omission of the "II" in the appellant's name
since that was a mere
misnomer that did not prejudice the Government, the Board granted the Government's
motion to dismiss the appeal for failure to state a claim because the issuance of
an RFP
for the inclusion of a COVID-related clause in the contract and then its rescission
before the contractor responded to it was not a constructive change
since that clause was never incorporated in the contract.
In King
& George, LLC, which involved the interpretation of a firm,
fixed-price 8(a) contract for facilities operations and maintenance
services for nine federal buildings in Florida with performance-based specs and
also minimum required staffing levels, the CBCA held that
the plain meaning of the contract's
"Application of Criteria for Deductions (Non-Performance)" clause did not permit the Government to make unilateral deductions simply for staffing shortfalls,
even though the contractor seemingly had initially
acquiesced in that interpretation before finally refusing to
sign a bilateral mod memorializing those deductions.
In UnlimitComp, LLC,
the CBCA dismissed a direct appeal by a subcontractor for
lack of jurisdiction.
In
CGS-Ace Security LLC, the CBCA denied the Government's motion for summary judgment
(based on the allegation that the appellant was not
the contractor) because (i)
the appellant's was the name entered into Box 15 (labeled "Name and
Address of Offeror") on the SF 33; (ii) the "Order of Precedence" clause
ranked the information in the SF 33 (part of the Schedule) over a conflicting
name in an exhibit to the contract; and (iii) there is no law stating that
awarding a contract to an entity different from the one named in the
proposal voids the contract: [The
Government] does not establish that a contract must be deemed awarded to the
entity whose name is on the proposal, regardless of the plain language of the contract itself.
Thus, even if the award of a contract to CGS-ACE Security LLC was found to be improper
as a matter of law, such a finding would not establish that [the agency] did not enter into a contract
with CGS-ACE Security LLC.
Changes/Constructive Changes/Contract
Interpretation/Breach/Authority
In
HDR Eng'g Inc., the ASBCA sustained an appeal by
an architect-engineer (A-E) of a government claim for professional negligence in
the design of a dam pursuant to FAR 52.236-23
because, under three-pronged test established in
Parsons Main, Inc., the Government failed to establish that: (i) the construction contractor substantially complied with the
A-E's design in the manner intended by the A-E; and (ii) in its
design, the
A-E exercised its skill, ability and judgment negligently, instead of with
reasonable care.
In
Fort Fairfield BP, LLC, which involved the interpretation of two lease
terms ("real estate tax base" and "full assessment"), the CBCA held that the GSA had used the correct year for
the real estate tax base
because: (i) it was the first full tax year after the lease commenced; and
(ii) that
year's
taxes were based on a "full assessment" since all improvements contemplated in the lease
were complete before the
taxing authority’s assessment date.
In
Phylway Constr., LLC, a Rule 11 proceeding, the ASBCA held that under
the "Damage to Work" clause in a contract for clearing, grubbing, and vegetation removal, excavation for
a new drainage canal, and placement of uncompacted embankment and compacted embankment,
the contractor could not recover for its costs of clearing debris deposited on the work site by
hurricane storm surge during performance because that debris did not fall
within the definition of "damage" and did not require "repair" within
the meaning of the clause.
In IVA’AL Solutions, LLC,
a decision on entitlement in a contract
with a tribally-owned participant in the
SBA's 8(a) business development program designed to
provide healthcare professionals to the Air Force, the ASBCA
held that: (i) in answering preaward questions
from bidders, the Government withheld superior knowledge concerning a
predecessor contractor's difficulties in maintaining adequate staffing
and its vacancy rates for unfilled positions; (ii) the disputed FFP
line items (with a
quantity of hours and a unit price per hour) formed a fixed-price,
level-of-effort term contract, under which the the contractor was entitled
only to recover for
work actually performed; (iii) a bilateral modification established
the contract's billing
method and superseded an allegedly contrary statement by the Contracting
Officer; and (iv) the Government did not breach the implied duty to
this contractor of good faith and fair
dealing by failing to enforce vacancy rates on a predecessor contract
with a different contractor.
In
Fluor Federal Solutions, LLC, which involved contract
interpretation in a fixed price regional base operations support contract for four Naval
facilities in Florida, the ASBCA held that: (i) preaward questions
(RFIs) and answers were incorporated in the contract; and (ii) based on
the contractor's proposal (to which the Government did not object and
which was incorporated into contract), the contract specifications,
and surrounding circumstances, the contract required the contractor to
"maintain" a previously populated database to be provided by the Government, and
the contractor was entitled to recover as a constructive change to the
extent the database provided by the Government was unusable, even
after the Government's efforts to scrub its data, which, in turn, required the contractor
to create the data in it (not as a volunteer). The Board denied the
contractor's claims for the following allegedly extra work
involved in maintaining and repairing equipment: (i) claims
based on the allegedly excessive age of the equipment and equipment with
pre-existing conditions (because the contract stated the equipment would be
made available "as is"); (ii) claims for allegedly having to make capital
improvements (because this work was within the contract's definition of
required "alterations"); (iii) claims based on work allegedly "not in
contract" (because (a) the contract work was described in terms of systems
rather than individual items, (b) the contract warned the list of items
in it was not
complete, and (c) the contractor's employees conceded that they developed this
claim category without reference to what the contract required); (iv)
various other categories of claims (e.g.,
negligence, incrementing, bundling, lack of access,
nuisance, and force majeure) (because the contractor failed to present adequate evidence to support
them or they involved work required by the contract); and
(v) claims for superior knowledge, breach of the "Government
Property" clause and breach of the implied duty of good faith and fair dealing, all based
on the Government's alleged misrepresentation of the condition of the equipment that
needed to be repaired (because, inter alia, of the multiple
statements in the fixed price contract that the equipment would be
provided "as is"). Finally, in part because the contractor
succeeded on one, but not all, of its claims, the record was not sufficient for
the Board to determine that
the agency's "marginal" and "unsatisfactory" CPAR ratings were justified,
so the Board returned the case to the agency to review its
CPAR ratings in light of
the Board's decision.
In
Quality Trust, Inc., building on its
prior decision concerning a
contract for road and bridge repair, the CBCA held that the contractor could
not recover for
suspensions of work (including a recovery based on the Eichleay
formula) because: (i) the Government was not the sole cause of any delay
(e.g., one of the suspensions was to allow the contractor to address
a mistake in price, another to address a cure notice for
deficiencies in its performance); (ii) in entering the
contract, the contractor had agreed there would not be any masonry work on
the bridge during bird nesting season;
and (iii) the suspension periods were reasonable.
In
David Boland, Inc., which involved a contractor's claim on behalf
of its sub in a contract for the replacement and construction of
floodwalls as part of a hurricane protection project in New Orleans, Louisiana,
the ASBCA held that the contractor had
failed to establish any of the four elements of a Type 1 differing site condition because: (i)
the solicitation warned of the possibility that conditions might vary from
those described in the solicitation; (ii) the contractor failed to
present adequate evidence that the conditions were unforeseeable,
especially where the solicitation indicated they might exist; (iii)
the contractor failed to present evidence of its contemporaneous
interpretation of the contract documents or that it had relied on its
alleged interpretation; and (iv) the contractor failed to establish
the site
conditions caused the alleged damages. The Board also denied a defective specification
claim because the specs were performance specs which meant the Spearin
doctrine (United States v. Spearin, 248 U.S. 132, 136 (1918)) was inapplicable.
In Fuel Tank Maintenance
Co., LLC, over a
dissent concerning one aspect of the claim, the ASBCA held that, in a contract for
the construction of relief wells and various modifications to
a pump
station: (i) the contractor was not entitled to compensation for 21 days of delay
that the contractor's own expert
report stated was concurrent or for 9 non-federal holiday days during
an
extended holiday that the contractor took from the job without seeking
the Government's approval; (ii) an email from the COR to the contractor could not
vary any contract requirements regarding an electrical impact study
because the COR lacked authority to change the contract;
(iii) motor pump testing ordered by the Contracting Officer under
the "Inspection of
Construction" clause required the contractor to be compensated when it was
determined the motors functioned as contractually required; (iv) the contractor
was
entitled to compensation for delay caused when an issue with monorail
clearance that prevented a subcontractor's work was discovered while
that sub was on the way to the site; (v) the contractor was required to submit
a "variance" and obtain approval for a change to a water test, and
the length of suspension of work associated with this process was reasonable;
(vi) the contractor was not entitled to compensation for its second excavation of
a discharge pipe absent evidence the Government (or the contract) required
the first excavation, which occurred
before the installation of larger (changed) motors that the contractor
already knew would
require a separate excavation; (vii) the contractor could not change from
the method of charging for field office overhead
identified in its proposal by an employee with authority to do so, as it was directed to do by a special solicitation provision
that was not inconsistent with FAR 31.105(d)(3) or otherwise improper, despite arguments by
the dissent that the special provision was improper and
that, in the circumstances, the contract should have been
reformed due to a unilateral mistake by the contractor's
employee.
In
Maverick Constructors, LLC, the ASBCA denied all the contractor's claims in
a contract for the construction of water
resource area levees, canals, pumping stations, control structures, siphon, access
roadways, and appurtenant work on a water conservation restoration project.
Specifically, the Board held that: (i)
allegedly unsuitable material (rocks) in an excavation did not constitute
a Type I differing site condition because, inter alia,
the rocks were not materially different from the material clearly described in
several contract documents; (ii) the Government's provision of an additional
borrow area within seven days of notice from the contractor that
satisfactory material in the original area had been exhausted was
reasonable in the circumstances and did not breach the implied duty of
good faith and fair dealing where the contractor had failed to produce
evidence for its assertion that it had submitted multiple notices
prior to the one at the onset of the seven day period; (iii) the contractor
could not recover for its costs of reconstructing the original levee
it had built that
allegedly met all contract requirements because the Government's daily
inspection reports during that construction repeatedly had noted
deficiencies in its fill material; (iv) the Government's ACO's comments on
various submittals by the contractor were intended to assist it in
revising the submittals and could not properly be interpreted as
change orders; (v) the contractor was on notice from the Government of
a defective specification prior to undertaking the action that it
now claimed was compensable due to that defect; (vi) there
was insufficient evidence concerning the contractor's
allegations that it was required to create a 5-foot
vegetation-free zone and establish grass seed long after the
period during which the work was required
by the contract; (vii) the contractor was not entitled to almost two years of
excusable delay and a corresponding remission of liquidated damages because
the contractor failed to establish the extent of delay, the harm resulting from alleged delay, and that any delay days were solely attributable to
government actions (a complete failure of proof).
Alares Constr.,
Inc. is an interesting CBCA case involving claims
for extra work and delays on a construction project at a VA medical center. The presiding judge died after the hearing, so a new judge read the briefs and issued
the decision. In connection with its post-hearing briefing, the contractor made several unsuccessful motions.
The contractor wanted
the CBCA to exclude documents impeaching one of the
contractor's
witnesses from the Appeal File because those documents were
not mentioned during the hearing. That request was denied
because, inter alia, the documents had been in the
appeal file for as long as for five years before the
hearing, and the deadline for objecting to documents in the
file had long since passed. The contractor wanted the Board
to overturn the trial judge's ruling that the contractor had
failed to qualify its witness as an expert on
delay claims and critical path analysis. That motion was
denied because the original ruling was correct and because
the trial judge (without objection from the agency) had
allowed the witness to present his opinions and his report
as lay opinion testimony. The contractor asked the Board to draw an
adverse inference (that the Contracting Officer's testimony
would have benefited the contractor) from the fact that the
Government had not called the Contracting Officer to testify at the hearing. The
Board gave several good and sufficient reasons for denying this motion, but
the only one it really needed, imo, was that the Contracting
Officer was also on the contractor's witness list, but the
contractor chose not to call him and also had declined the
new judge's offer to re-open the hearing to allow additional
testimony. On the merits, the Board found the contractor's
critical path report and analysis unpersuasive, but (to the
Government's apparent chagrin) instead of denying the delay
claim in its entirety, as the agency had requested, the
Board relied, to some extent, on the agency's
expert's critical path analysis, which had concluded the
contractor was entitled to some of its delay claim. The bulk
of this very long decision contains analyses of many issues
concerning the cause and extent of the delays, too many to
summarize here. Apart from its delay claim, the contractor presented no evidence beyond
speculation to support its claim that the Government had
breached its implied duty of good faith and fair dealing by
allegedly failing to reasonably review and approve the
contractor's change
order and delay requests out of fear of funding limitations. The Board denied
another claim because the contractor had failed the
requirement to coordinate the work of its subcontractors,
which resulted in one subcontractor removing some work
installed by another sub, which, in turn, necessitated the
reinstallation of that work.
In
1102 Co., a case conducted in accordance with the CBCA's small claims procedure, the
Board held that in a contract to provide, inter alia, personnel
with security clearances at fixed monthly rates for full-time equivalent work days of eight hours each,
the contractor was not entitled to bill for individuals until their
security clearances were approved, and the agency did not unduly delay
approval of a security clearance, especially where the solicitation warned
that background checks could require more than 30 days.
In
Conrad Shipyard, LLC, the ASBCA held that: (i) the Government’s solicitation
(expressly promising to pay up to a $1,000,000 stipend to all offerors who competed in the
solicitation with an acceptable proposal and pricing that was to remain
firm until award, but did not receive the award) did not
create an implied-in-fact contract as the appellant claimed,
but rather amounted to an express offer by the
Government to enter a
unilateral contract in return for specified performance by offerors;
(ii) once
the appellant had submitted its proposal, the Government's offer became an irrevocable
option contract; (iii) the appellant, however, did not complete its performance
of the unilateral contract because it
withdrew its offer before the Government made an award, so the
appellant was not entitled to any of the stipend. The Board
also dismissed a count in the Complaint for
breach of the implied duty of good faith and fair dealing because that
claim had not previously been submitted to the Contracting Officer for
a decision.
In
Vectrus Systems Corp., the ASBCA denied the contractor's changes,
breach, and negligent estimates claims, because the
"workload data" appended to a solicitation for a fixed-price contract for laundry services (and later revised in
a bilateral mod) did not establish
limits on the number of items that the contractor was obligated to
clean for the fixed prices and did not entitle the contractor to extra compensation for
certain categories of items where the work exceeded the corresponding
amount listed in that data, especially where the contractor
participated in deriving the workload data for the mod and
was paid the full contract price even in the areas where the
actual number of items cleaned was less than the number in
the workload data.
In
Skanska USA Civil Southeast, Inc., which involved an FFP contract
with the Navy for the demolition of two existing piers and
construction of a new pier at the Norfolk Naval Shipyard, the ASBCA denied the contractor's
claims for extra costs associated with the difficult removal of interior timber bearing piles.
First, the Board held that the contractor failed to produce sufficient
evidence concerning three issues necessary to support its claim that it was
impossible to fully extract the interior bearing piles while complying with the dredge
limits: (i) whether any other contractor was able to comply with the specifications;
(ii) whether the specifications required performance beyond the state of the art;
and (iii) the
extent of the contractor’s efforts in meeting the specifications. In
connection with this claim, the Board held that, when read
in context, neither of two
communications from the Navy was an admission of impossibility.
Secondly, the Board held that, although a note in the solicitation that "[a]ll timber structure
including but not limited to piles, bent caps, relieving platform shall be assumed to be
creosote treated" was a representation concerning a site condition, the contractor's
Type 1 differing site condition claim failed because: (i) its own prior
work on the site in a contract mentioned in the solicitation gave it
as least constructive notice that the bearing piles were untreated,
which the contractor should have foreseen; and (ii) the as-built
drawings, which the contractor should have reviewed, indicated the
piles were not
treated. The Board also denied the contractor's Type 2 differing site condition
claim because the contractor should have reasonably anticipated
that the bearing piles would be degraded due to their prolonged exposure (for 70
to 90 years)
to the adverse conditions under the piers.
In
Sheffield Barbers, LLC (which involved a
contract to operate barber shops at AAFES locations) long after
contract award, the Contracting Officer directed the
contractor to stop charging extra for "fade" haircuts. The
contractor submitted alternative constructive change,
breach, and misleading estimate claims for the lost revenue
and appealed their denials. AAFES then filed two motions for
summary judgment. The first alleged that the contract
required that fade cuts be charged only as regular cuts. The
ASBCA denied that motion because the Contracting Officer (a) was aware that
the contractor was
charging extra for those fade cuts as "style" cuts, (b) acquiesced
in the
extra charges, and (c) did nothing to stop this practice for the first
15 months of the contract, which amounted to a waiver of AAFES'
interpretation of the contract. The second motion for
summary judgment was to dismiss the claim that the
Government's estimates in the solicitation about the amount
and type of cuts to be expected were misleading. The Board
held that those estimates were based on the Government
having allowed the predecessor contractor to charge extra for fades, and,
therefore, were neither inaccurate nor unreasonable (and
actually supported the contractor's breach and change claims).
In
ECC Int'l Constructors, LLC,
one among a series of decisions involving a contract to design and construct a 20-building
military compound in Afghanistan (this one involving claims for delay and
remission of liquidated damages), the ASBCA held that: (i)
the contractor's expert's delay analysis was not
credible because he did not create a "fragnet" (fragmentary network)
to analyze the effect of one significant source of delay on the project;
(ii) the Government's
admissions against interest that its 100% design review delayed
the project could reasonably be interpreted to put that delay on the critical path,
but the contractor's concurrent delay exceeded the number of days of delay
caused by the Government, so the contractor was not entitled to any compensable delay;
and (iii) despite failing to prove compensable delay, the contractor
was entitled to
recoup liquidated damages assessed by the Government for delays in the approval
the 100% design submission because the contractor rightfully
interpreted the contract to require the 100% design submittal only to
incorporate the contractor's responses to the comments the Government had
made in response to the 95% design submittal.
In
Gideon Contracting, LLC, which involved a task
order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be
required to allow the release of water when lake elevations exceeded
a certain level, and, therefore, under the "Suspension of Work" clause,
the contractor could
recover only for the portions of the suspension periods where the Government
inexplicably continued releasing water after the lake had reached the required
level and, in another case, where the Government (again inexplicably)
did not permit the contractor to return to work for five days after
the required level had been reached. The Board also held that the Government waived its claim for
liquidated damages for late completion of the work by waiting more
than a year to assert that claim as a punitive response to the
contractor's claim.
In
Chromalloy Component Services, Inc., which involved a contract to
refurbish a major module of the F108 engine
used on KC-135 aircraft, the ASBCA denied the incumbent contractor's claim for extra costs
associated with increased prices for turbine fan blades and the
Government's decision to change from contractor-acquired
blades to GFM because: (i) the contractor
did not properly allege, much less prove, that the Government possessed
superior knowledge concerning the pricing and availability of the blades or
that the contractor relied on any defective information from the
Government in pricing its bid, and any alleged promise by the
Contracting Officer concerning the issue came only after the contractor had submitted its bid;
(ii) the contractor's claim for the costs of blades it ordered before
the
Government switched to providing the blades as GFM would be denied because
the contract
explicitly allowed the Government do do so; (iii) the contractor did not establish
that a
prior course of dealing existed that precluded a large order being
placed
near the end of the base year rather than during the first option year
when it would have been performed and priced at higher option year rates,
and, at any rate, the contractor had signed bilateral modifications
memorializing the orders; and (iv) none of the above claims amounted to
a
constructive change.
In
TransOx, Inc., a proceeding conducted in accordance with CBCA Rule 52
(its small claims procedure), the CBCA was faced with appeal involving
the interpretation of a very poorly drafted contract line item providing for a "[o]ne time delivery fee for any purchased items . . .
each, per delivery, per patient" in a contract to provide home oxygen services to VA medical center outpatients.
The Board held, inter alia, that: (i) in
interpreting that provision,
the Board would not look for assistance to language in the solicitation that was not
incorporated into the contract; (ii) the VA's interpretation of the provision as
providing only for a one-time delivery fee no matter how many deliveries
were made would ignore all language in the line item after the words
"one time delivery fee"; (iii) although the contractor's
competing interpretation of that line
item was problematic, it was within the zone of reasonableness, and
since the VA
had not offered a reasonable counter-interpretation, the contractor's
interpretation would be adopted; and (iv) even if the language were ambiguous, it
would be interpreted against the VA as its drafter.
In
UnitedHealthcare Insurance Co., which involved a contractor's
(insurer's) dispute over money it had to pay out for an
insurance claim, the CBCA granted the agency's motion for summary judgment concerning
the contractor's
breach claim because the contractor failed to establish causation, i.e.,
what would have happened in the "non-breach world" if the alleged breach
had not occurred.
In
A4 Constr. Co., which involved the Government's motion to dismiss
appeals of claims involving defaulted firm, fixed-price ("FFP") contracts to
design and construct training facilities for U.S. Special Forces in
Colorado, the ASBCA held that: (i) a bilateral modification was an accord and satisfaction that
clearly covered all the contractor's claims concerning delays from an
earthquake and also released the Government from liability for those
claims; (ii) a bilateral modification addressed (and released) claims for
delays during the month of a flooding event, but the contractor could continue to
pursue its claim for delays from that event in other months; (iii) a bilateral modification
covered a gas piping change and clearly released further claims
concerning that change; and (iv) although a mod exercising options did not
contain release language and was not an accord and satisfaction of
the contractor's claims for increased subcontractor costs due to
the COVID
pandemic, such costs are not recoverable in an FFP contract, but the
contractor's claim for delay days attributable to the pandemic
survived the Government's motion to dismiss.
In
GSI Pacific, Inc., which involved
contract
interpretation in a contract to remediate (remove munitions and
explosives from) the Area M Munitions Response
Site in Hawaii, the ASBCA held, inter alia, that: (i) a statement in
the contract that "work is to be performed in
accordance with" a "Decision Document" was sufficient to incorporate that document
into the contract; (ii) a note in a section of the contract entitled "Background and
History" that a Feasibility Study had been conducted in the past
was
insufficient to incorporate that document into the contract; and (iii) alleged actions
by adjoining landowners limiting the contractor's access to the site
were not
compensable because contract did not shift the risk of delays caused by
third parties to the Government, which had obtained the necessary right-of-way forms from the landowners.
In
Gideon Contracting, LLC, which involved a task
order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be
required to allow the release of water when lake elevations exceeded
a certain level, and, therefore, under the "Suspension of Work" clause,
the contractor could
recover only for the portions of the suspension periods where the Government
inexplicably continued releasing water after the lake had reached the required
level and, in another case, where the Government (again inexplicably)
did not permit the contractor to return to work for five days after
the required level had been reached. The Board also held that the Government waived its claim for
liquidated damages for late completion of the work by waiting more
than a year to assert that claim as a punitive response to the
contractor's claim.
In
AECOM Technical Services, Inc., the ASBCA decided the
contractor had no right to recover its considerable costs
associated with its preparation of a proposal, including a
feasibility study, in connection with a solicitation for a
task order award under its IDIQ contract because the
contract clearly and repeatedly stated such costs could not
be recovered if the Government decided not to award the task
order or proceed with the project "for any reason."
Specifically, the Board held that: (i) it lacked
jurisdiction over any claims based on an implied-in-law
contract; (ii) the contractor had not previously submitted
its superior knowledge claim to the Contracting Officer for a
decision; (iii) the implied duty of good faith and fair
dealing cannot be used to establish a contractual right
directly contradictory to the terms of a written contract;
and (iv) the fact that the Contracting Officer had not given
any reason for not proceeding with the project was
irrelevant because the contract did not require him to
provide a reason:
If the KO determines that the project is not feasible for
any reason including but not limited to financial,
technical, contractual, savings determination, installation
mission, or organizational issues, then the Government will
not be subject to any costs associated with the feasibility
study unless the Government exercises its option to obtain
ownership of the submitted documentation.
Terminations/Liquidated
Damages/Government Claims
In
Wise Developments, LLC, the CBCA overturned
the agency's default termination
of a building lease based on an alleged (sporadic) odor bothering the tenants that the lessor had
undertaken extraordinary steps to identify but that could
never be detected by third parties, much less traced to any
source in the building, itself, beyond, possibly, space
heaters used by the agency's employees in violation of their
lease because the allegedly offensive odor did not satisfy the
condition in the default clause cited by the agency to
justify the default, i.e., that the lessor had failed to maintain, repair, operate or service the premises as and when specified in the lease or
had failed to perform any other requirement of the lease as and when required
(especially when the lease did not have any requirements
concerning offensive odors). The Board also found that the
situation did not constitute a common law constructive eviction
because the intermittent alleged odors did not rise to the
level of "living or operating
conditions . . . so egregious as to constitute substantial interference with the tenant’s
beneficial use and enjoyment of the leased premises."
In
Eagle Peak Rock & Paving, Inc.,
on
remand from the CAFC, which had reversed the
CBCA's prior decision (overturning a default termination) on the basis
that the Board had focused on the reasoning in the Contracting Officer's
termination decision rather than considering the
issues de novo, the CBCA
again holds the termination for failure to make progress was improper
because the schedules presented by the contractor complied with the
contract's requirements and showed it could have completed the work on
time considering that two construction seasons remained, and, in the
circumstances, the contractor had made adequate progress during the
first construction season.
In
Crystal Clear Maintenance, a Rule
19 proceeding solely on the written record, the CBCA denied the Government's
half-baked claim for flood
damage in a building after a storm (which allegedly resulted from the contractor's work
on its building maintenance
contract) because: (i) the proceeding was not bifurcated into quantum
and entitlement, and the Government failed to present any evidence
of quantum[!]; (ii) the Government did not establish that the
contractor's actions caused the flooding event; (iii) the Government's
allegation that the contractor was required to have personnel in the
building during the weather event that resulted in the flooding
conflicted with the clear language in the contract; and (iv) the
Government's allegation that the contractor should have notified that
Government that it had moved a sensor failed because the Government did
not even prove the contractor actually had moved it.
In JITA Contracting, Inc.,
the CBCA denied
cross-motions for summary judgment concerning the propriety of a default
termination. The Board held that the contractor did not establish that the Government had waived
its right to terminate by waiting approximately two months after the
required completion date because the contractor had not
presented any undisputed facts showing that it "could . . . reasonably have believed that time was not of the essence or that its
previous periods of delay had been excused." The Board denied two of the three grounds
the Government contended supported its decision to terminate because they were
not alleged in the Government's Complaint or any any time before reply
briefing in the the Government's motion for summary judgment
(this was an issue of lack of adequate notice to the
contractor, and these items could still be litigated at a
hearing on the merits). The Board
denied the remaining portion of the Government's motion alleging that
the default was
justified by the contractor's failure to complete the project on time because
the motion did not include any undisputed facts establishing
that the contractor did not have any excusable
delays. Finally, the Board granted the portion of the Government's motion alleging that
"disincentive deductions" could be taken by the Government for
the contractor's
delays beyond the completion date because, although the contract language
was not "ideally drafted," no other interpretation of the contract's language made
sense.
In
Pinewood Inc. fka PNI Incorporation, a Rule 11 proceeding
concerning a fixed price contract for repair of
a contingency fuel delivery system at an air base in Korea,
the ASBCA upheld a default termination
for failure to make progress because the contractor had completed less than
4% of the work with more than half the time allotted for the job
having passed, and the contractor failed to present evidence that any of
its claimed excusable delays affected the critical path. The Board did
note that the contractor
was entitled to payment for demolition work it had performed prior to
the termination.
In
U.S. Aeroteam, Inc., the ASBCA upheld the default termination for failure to make progress of a contract
to furnish trailers used to transport aircraft
engines because the contractor demanded payment for its disputed claims as a
condition of continuing work, violating its duty to proceed pursuant to the "Disputes" clause.
In
Langdon Eng'g and Management, the ASBCA upheld the default termination of
a firm, fixed-price contract to refurbish and deliver
eight bow thruster nozzles used to propel a type of hovercraft because the
contractor failed to deliver any of the contract items despite being
granted two significant time extensions to do so and failed to prove
its failure to deliver was excusable, relying instead on an
unreasonable interpretation of clear specifications and failing to
prove its allegations that the bow thruster nozzles (a) differed materially
from the OEM drawings, (b) contained manufacturing defects, and (c) could not
be refurbished. The contractor also failed to prove its contentions
that: (i) the fixed-price contract was commercially impracticable
to
perform (because an alleged cost overrun alone was not sufficient for
such a finding); (ii) the Government had withheld
superior knowledge (because the solicitation documents clearly stated
the bow thruster nozzles had reached the end of their useful lives, and
the contractor failed to prove that there was any knowledge that the Government
possessed but failed to share with the contractor); and (iii)
the Government breached the implied duty of good faith and fair
dealing in managing the contract or terminating it. The Board also
held that the contractor was not
entitled to recover money for allegedly out-of-scope repairs because
the Contracting Officer did not authorize any such repairs.
In
GSC Constr., Inc., a Rule 11
proceeding concerning a contract to design and renovate an Army barracks,
the ASBCA held that: (i) the contractor's
floor leveling claim was part of a prior request for equitable adjustment that
the contractor had released in a bilateral settlement agreement;
and (ii) the Government had
established by a preponderance of the evidence that the "most probable
cause" of one of two flooding events for which the contractor claimed
compensation was the contractor's defective "cross threading";
but (iii) the Government had failed to establish that a second flooding event was due to defective materials or workmanship
in the contractor's Roto-Rrooter.
In
Pontchartrain Partners, LLC, which involved, as a preliminary
matter, the interpretation of the scope of a release in a
contract for repairs to the Corpus Christi Ship Channel, the
ASBCA granted the Government partial summary judgment on the contractor's commercial
impracticability claim. Both parties asked the Board to determine the issue of commercial
impracticability based solely on the percentage of the contractor's cost overrun.
The Board held that the
Government's methodology for calculating that percentage (comparing the total alleged cost
of contract performance to the total adjusted contract price) was the
correct one, and the resulting percentage (37%) was not enough, standing alone,
to establish commercial impracticability.
In
Gideon Contracting, LLC, which involved a task
order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be
required to allow the release of water when lake elevations exceeded
a certain level, and, therefore, under the "Suspension of Work" clause,
the contractor could
recover only for the portions of the suspension periods where the Government
inexplicably continued releasing water after the lake had reached the required
level and, in another case, where the Government (again inexplicably)
did not permit the contractor to return to work for five days after
the required level had been reached. The Board also held that the Government waived its claim for
liquidated damages for late completion of the work by waiting more
than a year to assert that claim as a punitive response to the
contractor's claim.
Costs, Defective
Pricing, and Cost Accounting Standards (CAS)
In
Parsons Government Services, Inc., the ASBCA held that the proper interpretation of FAR § 31.205-36(b)(2)
concerning the allowability of rental costs incurred by a
contractor following the sale and leaseback of a depreciable asset (in this case a
building) involves resort
to FAR § 31.205-16(d) which caps the recognized gain at the difference between
the acquisition cost of the asset and the undepreciated balance at the time of
the sale and leaseback "to
ensure that the recovery of costs [is] limited to those that would be
allowable had the contractor retained title (i.e., the costs of ownership) and neither the
government nor the contractor would be worse off because of a sale and leaseback than
they would have been had title been retained."
In D-STAR Eng'g,
Corp.,
which involved a T for C of a CPFF R&D contract to build a fuel-to-power
generation system for an unmanned vehicle, the ASBCA held that the DCMA: (i) had provided specific support for
its finding that certain contractor-incurred costs after a partial stop
work order were not reasonable, and the contractor had failed to rebut that
evidence with anything more than generalizations; (ii) had correctly found
that certain material costs included in the contractor's engineering
overhead pool were unallowable because the contractor had been compensated
for them as direct costs on a prior contract; (iii) had
established that the contractor had
improperly included certain long-range
planning costs in its G&A expenses to calculate its G&A rate for one calendar year
because the costs were (a) unsupported or (b) included burden on top of G&A expenses;
(iv) had properly documented its reasons for determining that some of
the contractor's proposed termination settlement expenses were unreasonable,
and the contractor had failed to provide evidence in opposition; and (v) had
properly determined that the contractor's
claim for various settlement expenses should be reduced by the amount already credited by
the Government in its debt demand claim and by the costs of preparing the
contractor's certified CDA claim. The Board also held that there was
no evidence to support the contractor's claim of a verbal
contract for clean-up work. Finally, the Board that the Government
had improperly calculated the fee
due to the contractor on the terminated contract by misinterpreting the
phrase "the percentage of completion of work contemplated
under the contract" in FAR § 52.249-6(h)(4)(i).
Quantum
In
AICI-Archirodon JV, the ASBCA held
that the proper measure of
the downward price adjustment for shipping by means other than
the required U.S.
flag vessel was the difference between (i) the quote the contractor
had obtained for the only U.S. flag ship
available and (ii) the price the contractor paid for an alternate shipping
method. The Board rejected the contractor's assertion that
the calculation should be based on the "reasonable" cost of
a U.S. flag vessel.
In
HD, Inc., the ASBCA determined the appropriate method for
calculating price adjustments for increased wages in covered
labor positions in the option years of a contract subject to
the Service Contract Act (SCA), which included the predecessor
contractor's collective bargaining agreement (CBA).
Specifically, the ASBCA held that the price adjustment for option year one
was the difference between the rates
in the revised CBA covering that option year and the the base
year's CBA rates (based on the predecessor contractor's CBA), and for option year two,
it was the difference between the CBA for
option year two and the CBA for option year one. The Board
specifically rejected the contractor's interpretation that
the adjustment should be the difference between the appropriate CBA and
the prices the contractor had originally proposed for the option
years, which were based on the SCA wage rate determination for the
locality, which also had been included in the solicitation (but only
for the purpose of determining wage rates for positions not covered by the
CBA) because the contractor's interpretation would lead to inconsistent and
illogical results, would undermine the purpose of the SCA,
and conflicted with (a) other
provisions of the solicitation, (b) the Price Adjustment
clause (FAR § 52.222-43(b)), and (c) the
Government's responses to bidders' questions during the solicitation process.
Discovery/Motions/Procedure
In
Sauer Constr., Inc., the ASBCA denied the
Government's motion for summary judgment that a release unambiguously barred the contractor's rust
remediation claims because the language of the release could be
interpreted to be limited to a specific change rather than to all
claims, including the claim in dispute. In Government Training LLC,
the ASBCA dismissed an appeal for failure to prosecute after
the appellant essentially ghosted both the Board and the
Government by failing to
respond to numerous communications and orders from them. In
The Minesen Co., the ASBCA
dismissed an appeal with prejudice for failure to prosecute because
the appellant failed to respond to several orders from the Board after its
counsel was permitted to withdraw.
Equal Access to Justice Act
In
Adapt Consulting, LLC,
the CBCA held that: (i) the agency's actions in terminating
a contract for
default and in denying almost all of the appellant's monetary claims were
not substantially justified; (ii) there were no defects in the attorney billing records
provided by the appellant; and (iii) absent any specific objections
presented by the Government, the Board on its own would
determine that the appellant's success on the default termination and
most of its claims merited an EAJA award of 75% of its attorneys' total billings.
Court of Federal
Claims
Contract Disputes
Act (CDA) / Tucker Act / Jurisdiction / Standing
In
The Kennedy Collective, a case that involved contract
interpretation, the court dismissed the
contract suit, holding that a blanket purchase agreement (BPA) awarded by NOAA to
the plaintiff for PPE during COVID was not a
binding contract or a requirements contract or an indefinite quantity
contract because it was not based on mutuality of either consideration
or obligation, so the Government was not liable on the plaintiff's claim for
its inventory and disposal costs of PPE that
the plaintiff acquired in anticipation of receiving orders
that did not materialize, even though the BPA
contained some irregularities when compared to a normal BPA, e.g.,
referring to itself as a contract in several places.
In
BES Design/Build, LLC, which involved claims
for delay damages, the court denied
the Government's motion for summary
judgment concerning two constructive change claims because there were
disputed issues of fact as to (a) whether the contract required the
contractor to provide designs for the replacement of all plumbing and electric panels
or only those that could not be reused and (b) causation, i.e.,
which party was responsible for the fact that the
contractor's design submissions were late. The court dismissed
(for lack of jurisdiction) the contractor's claim
for the replacement of steam heating with a gas-powered boiler because the
claim had not been previously submitted to
the Contracting Officer for a decision: "The words 'steam' and
'heating' never appear in the claim. . . . In fact, they do not even appear in [the plaintiff's]
complaint."
In
Textron Aviation Defense LLC, the court affirmed the
prior CoFC decision granting summary judgment to the Government
and dismissing the contractor's Complaint because the
underlying claim was not
submitted within the six-year limitations period. Specifically, the
court held that: (i) the contractor failed to
present evidence that it did not have enough information to know or
have reason to know the claim's "sum certain" at the time the
court concluded the limitations
period began to run; (ii) the CoFC correctly concluded the contractor's request for
payment under CAS 413 was not "routine" because
the alleged amount owed had no connection to the expected or scheduled progression of contract performance,
but rather arose from an unanticipated bankruptcy and
associated segment closings; (iii) the contractor's predecessor-in-interest sustained
damage (which started the limitations period running) when the
terminations and curtailment of the pension plans triggered
its ability to request CAS 413-50(c)(12) pension-cost
adjustments, and not at the much later date when the
Government denied its CAS 413 payment request.
Changes/Breach/Contract Interpretation/Defective
Specs/Authority
In
THE CENTECH GROUP, Inc., the court held that:
(i) the Government had breached a task order for the contractor's acquisition and installation of
a communications infrastructure in a
building on Vandenberg Air Force Base by failing to pay for materials necessary
for that installation that had been ordered on the basis of Government's
approval of the bill of materials, even though the Government subsequently
paused the project after which the contractor switched subcontractors
and ordered different materials; (ii) the contractor's failure to invoice
precisely correctly for the parts was not a "material" breach that
would absolve the Government from having to pay for them; and (iii)
the Government could not avoid payment by noting that the items had never been
delivered because it was the Government that had prevented delivery by pausing
the project.
In Sunrez Corp.,
interpreting, in detail, a Small Business Innovative Research
contract with the Air Force to design, develop, and build next-generation air-cargo
pallets, the court granted the Government's motion for summary
judgment concerning the plaintiff's claim for breach of the implied duty of good faith
and fair dealing because, read as a whole, the contract required the plaintiff
to initiate a draft technical data package at the beginning of Phase
II, develop that package during Phase II, and deliver it before
beginning Phase III with enough detail to accurately
depict the final product and to allow competitive re-procurement in Phase III, and
the plaintiff could not identify any specific promise in the contract that
the Government had breached in the various actions that the plaintiff
alleged constituted the breach.
In TPMC-EnergySolutions Environmental Services 2008, LLC,
which involved the interpretation of an ID/IQ contract
with an 8(A) mentor-protégé JV for remediation
services at nuclear waste site, the court
held in a lengthy opinion, inter alia, that: (i) under the doctrine of
contra proferentem, the plaintiff's interpretation of a task order as
firm fixed price (rather than fixed unit price) was reasonable and would be adopted;
(ii) disputed release
language in one task order would not be interpreted as a waiver of
the plaintiff's claim for a Type I Differing Site Condition under FAR 52.236-2 because
that language differed from the waiver language in other task orders
and modifications that did constitute a general release; (iii) a reasonable contractor reading the contract documents as a whole would
interpret
the statement that the "top five feet of overburden associated with each burial pit
is considered uncontaminated soil" as making an affirmative representation as to the site condition,
which turned out to be inaccurate; (iv) the contract documents indicated to
a reasonable contractor that certain contaminants would be found
underground in packaging and containers, and finding them dispersed
in, and not easily separated from, the soil was an unforeseeable
differing site condition; (v) the agency breached the contract by failing to
disclose its superior knowledge as to both these issues; (vi) the agency
breached the implied duty of good faith and fair dealing by (a) improperly
conditioning approval of an aspect of the contractor's work plan on its
agreement to rates advocated by Government in a separate billing
dispute, (b) insisting that the contractor accept language in a mod waiving its right
to an equitable adjustment, when the basic contract clearly gave it such
a right, and (c) threating the contractor with fines for breaching a supposed 90-day storage limit
that the agency failed to disclose actually had been waived by the EPA;
and (vii) the agency's actions rendered the task order mod
void and unenforceable
due to economic duress.
In
B.L. Harbert Int'l, LLC, which involved a contract to replace
a taxiway at an Air Force base, the court granted
the Government's motion
for judgment on the pleadings based on general releases in
two bilateral modifications. The first release stated the modification "constitutes compensation in full on behalf of the Contractor and its Subcontractors
and Suppliers for all costs and markups directly or indirectly
attributable for the change ordered, for all delays related thereto, for all extended overhead costs, and for performance of the
change within the time frame stated." The second release covered all claims
except any for a time extension that might occur in the future, and
there was no such time extension.
In
SLSCO, Ltd., the court was faced with the plaintiff's challenges
to CPARS involving a contract to build a section of
Southern border wall, which was terminated for convenience, and held
that: (i) the plaintiff
lacked standing concerning its allegations as to procedural defects in
the CPARS because, under the binding precedent of the CAFC's decision in
Todd Construction
(in which that plaintiff had alleged several of the same errors as the
current plaintiff did),
the plaintiff failed to show that it was "prejudiced
by a significant error"; (ii) dismissed the plaintiff's breach of contract claim
the because
the CPARS regulation (FAR 42.15) was not incorporated in the contract
and, therefore, the Government had no contractual duty to
the plaintiff to provide a CPAR; and (iii) dismissed the plaintiff's substantive
challenges to the "Marginal" performance ratings it received because
it failed to allege facts that would establish those ratings were
inconsistent with the definition of a Marginal rating in the
regulations or facts that would establish such ratings were inaccurate
or were arbitrary and capricious. Concerning these latter holdings,
the court spent considerable time analyzing what its
standard of review should be when reviewing de novo
a Contracting Officer's decision under the CDA concerning
the propriety of the underlying CPARS, which are reviewed
under an abuse of discretion standard.
Discovery/Procedure
In
BES Design/Build, LLC, which involved claims
for delay damages, the court denied
the Government's motion for summary
judgment concerning two constructive change claims because there were
disputed issues of fact as to (a) whether the contract required the
contractor to provide designs for the replacement of all plumbing and electric panels
or only those that could not be reused and (b) causation, i.e.,
which party was responsible for the fact that the
contractor's design submissions were late. The court dismissed
(for lack of jurisdiction) the contractor's claim
for the replacement of steam heating with a gas-powered boiler because the
claim had not been previously submitted to
the Contracting Officer for a decision: "The words 'steam' and
'heating' never appear in the claim. . . . In fact, they do not even appear in [the plaintiff's]
complaint."
In AETC II Privatized Housing, LLC
et al., the court (noting it was
addressing discovery issues that have not yet been
consistently decided by the courts) held that, under CoFC
Rule 36, requests for admission concerning the meaning of
the contractual documents at issue do not involve pure
questions of law (and, therefore are appropriate) so long as
they connect the facts and circumstances of the case to
those documents. The same holds true for requests for
admission concerning the application of a federal statute to
the facts of the case. Finally, the court held that the fact
that a request for admission may relate to the "ultimate issue" of the case is not
a valid ground for refusing to respond.
In
Martin Bros. Constr., which involves CDA claims for breach of contract,
the court denied the Government's motion for
an extension of time to file its Answer (even with the plaintiff's consent)
because the court already had granted the Government four extensions totaling 242
days and had warned it would not grant another extension. The
Government's failure to adequately staff the case due to the demands of
separate
tariff-related cases was not an adequate excuse, especially where
Congress had allocated the appropriate personnel funds: "The government here has not established that the increase in
[its counsel's] workload and the
time-sensitive demands of other litigation are the result of anything more than the Department of
Justice’s failure to respond to a predictable increase in case volume and a decision to reduce or not
replace departing staff."
In Broadway Gold, LLC,
the court denied the Government's motion to dismiss
a count in the Complaint seeking a declaratory judgment
because such a judgment would provide an early resolution of
the issue whether the Government could exercise an option in a lease to
purchase a property in light of the Government's alleged breach, and monetary damages
would be insufficient to address the harm the plaintiff alleged. The
court also denied the
Government's motion to dismiss counts in the Complaint plausibly alleging
a breach of contract because that alleged wrongdoing should be weighed
in determining whether the Government's affirmative defenses of equitable
conversion or merger bar the plaintiff’s claims.
EAJA
I
Court of Appeals for
the Federal Circuit
Jurisdiction/Standing/Res
Judicata
In Tiffany
Buford, the CAFCl held it lacked jurisdiction over an appeal from a CBCA decision on a civilian employee federal travel
claim under 31 U.S.C. § 3702(a)(3) for reimbursement of relocation expenses.
In
Hawaiian Dredging Constr. Co., a decision labeled as
nonprecedential, the CAFC held that the Court of Federal Claims should not
have granted the Government's preliminary Rule 12(b)(6) motion to dismiss
(for failure to state a claim) most of the contractor's claims alleging
that various Government actions or
inactions delayed and/or increased plaintiff's costs on a fixed-price
construction contract because, accepting the allegations in the
Complaint as true, as the lower court should have, there were open
issues that
could only be resolved by further proceedings, e.g., whether
the time the Government took to obtain rights of way and
approval of utility agreements was reasonable when the
contract was silent on the issue.
In
Keyes Helium Co., LLC, a decision labeled as nonprecedential,
the CAFC held, inter
alia, that the CoFC had erred
in granting the Government's motion to dismiss the plaintiff's breach of contract claim
in a contract for the storage of helium because the plaintiff had plausibly alleged, but
lower court's analysis had failed to consider,
that there was a contractual obligation that the Government had
breached.
In
Chizoma Onyems, the CAFC held
it lacked jurisdiction over a suit challenging a prior ASBCA decision
because it was filed in his own name by the non-attorney owner of
the sole proprietorship involved in the ASBCA case, which
meant that, pursuant to the CDA, he was not the "contractor" that was the
litigant before the Board and also had not retained counsel to appear
before the court as required by the court's rules.
Changes/Interpretation/Breach
In
WSP USA Solutions, Inc., a decision labeled as nonprecedential,
the CAFC remanded the
case for further proceedings because the ASBCA had
erred in concluding
both that: (i)
the contract at issue was an IDIQ rather than a requirements contract; and (ii)
the contract unambiguously required that task orders should be priced at
the time they were issued rather than at the time of performance.
In
Balfour Beatty Constr., LLC, a decision
labeled as nonprecedential, the CAFC vacated and remanded (in part) the
prior CBCA decision because a contract drawing indicating that the contractor should
“match existing building foundations” (which were
18 inches thick) was sufficiently definite to constitute a design
specification, creating an implied warranty, and the CBCA erred in construing it as a
performance specification.
In FlightSafety International Inc.,
the CAFC affirmed the prior
ASBCA decision, holding that, pursuant to 10 U.S.C. § 2320 and DFARS § 252.227-7013,
the contractor's restrictive markings on
commercial data necessary for operation,
maintenance, installation, or training ("OMIT" data) and developed exclusively at private expense were improper
because the markings would have restricted the Government's rights to use
that particular type of data on
future procurements.
In
Sheffield Korte Joint Venture, a decision labeled as
nonprecedential, the CAFC affirmed the
prior ASBCA decision, holding that a specification for a stormwater management
system was a performance spec, so the Spearin implied warranty of
a design
specification was not applicable.
In
Lessors of Abchakan Village, Logar
Province, Afghanistan, which concerned an
agency's alleged failure to pay property owners for use of property in
Afghanistan, the CAFC vacated the
prior ASBCA decision (granting
the agency a summary judgment) because the lessor had raised material issues of fact concerning ownership
of the property, and the Board had improperly ignored evidence supporting the
lessor's position and had erroneously concluded that the act of
state doctrine applied in this case.
In Amatea/Grimberg JV,
a decision labeled as nonprecedential, the CAFC affirmed the
prior ASBCA decision denying plaintiff's claims on a contract to
design and build a laboratory because a contractor is not entitled to
a presumption of excusable delay when a Contracting Officer issues a
time extension and there was substantial evidence supporting the
Board's determination that the contractor did not establish excusable
delay when it failed to present any expert testimony to rebut
the Government's expert's critical path analysis. The court also found
there were rational bases for
Contracting Officer's exercise of the discretion allowed by contract to
deny the contractor's requests to work outside of normal hours.
Terminations
I
Costs/CAS
In
Fraud/Anti-Kickback
EAJA
Supreme Court
This
website links to resources on the web concerning
government contracting. It is not intended to provide
legal advice. Moreover, I do not vouch for the
completeness, currency, or accuracy of the sites to which
it links. If you have comments, suggestions for new links,
or corrections, please email me.
|