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2025 Procurement Review--Contract Disputes



Contents

Boards of Contract Appeals

Court of Federal Claims

Federal Circuit

Jurisdiction/CDA 

CDA/Jurisdiction

CDA/Jurisdiction

Changes,  Breach, Interpretation

Changes/Breach/Contract Interpretation/Defective Specs

Terminations

Terminations

Terminations

Fraud/Anti-Kickback

Costs/CAS

Costs/CAS

EAJA

Quantum

Discovery, Evidence, Procedure

Changes

Procedure

Fraud

EAJA

EAJA/Attorneys Fees

Supreme Court

 

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


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