Litigation/ADR

Disputes Litigation & Alternative Dispute Resolution Overview

Special Forums, Our Experience. Disputes under government contracts must be heard in specialty forums—the Court of Federal Claims, the Boards of Contract Appeals, and the Federal Circuit. Crowell & Moring spends a lot of time in these forums and, we believe, has the earned respect of both judges and government attorneys.

Settlements and Litigation. Crowell & Moring's record of favorable results for our clients in this specialty litigation is unsurpassed. While we take pride in the many favorable settlements we have helped clients obtain, our accomplishments for our clients are best demonstrated by decisions that are a matter of public record. A sample of our more recent successes include:

• Construction Claims and Counterclaims: After Crowell & Moring represented construction clients in matters against WMATA, this government entity retained the firm in connection with the construction of Metro's Green Line. Crowell & Moring represented WMATA in litigation against Mergentime Corporation and Perini Corporation (Mergentime Corp. et al. v. McElhenny, et al.), involving contractor claims and terminations-for-default arising from such construction. The case was first tried in 1991, and decided in major part in WMATA's favor in 1993, but the judge died before deciding the entire case. The replacement judge completed the decision, but did not fulfill his record-familiarization obligations as a successor judge. As a result, the Court of Appeals reversed and vacated his decision. On remand, a new judge replaced the incapacitated second judge and ordered a new trial, which took place in 2001. In 2005, the judge issued the decision which upholds the default termination and grants our client $21 million in reprocurement costs, while limiting the contractor to only $200, 000 in delay damages.
• Federal Supply Schedule Pricing: Viacom, Inc., Successor in Interest to Westinghouse Furniture Systems v. General Services Administration, GSBCA No. 15871, 05-2 BCA 33,080, Sept. 21, 2005. Crowell & Moring lawyers defeated GSA claims that Westinghouse Furniture Systems owed the Government more than $3.8 million in refunds for not disclosing its most favored customer discounts in negotiating a Federal Supply Schedule contract in 1984. On a dispute that lasted 15 years, and included Department of Justice fraud investigators (the fraud allegations were declined by DOJ), and after a contentious trial and briefing, the GSBCA decided that the purportedly undisclosed discounts were irrelevant to the pricing of the contract at issue and the damages sought by the Government were based on an unreasonable premise.
• Air Force Defective Pricing Claim: United Technologies Corp. - Pratt & Whitney Division, ASBCA Nos. 51410, 53089, 53349, 04-1 BCA 32,556, modified on reconsideration, 05-1 BCA 32,860. Crowell & Moring lawyers defeated Air Force defective pricing claims, in the amount of $299 million, arising from the famous "Great Engine War," involving intense competition between Pratt & Whitney and General Electric from 1984-1990. The Air Force alleged that defective "cost or pricing data" submitted in 1983 increased the prices it paid. After eight weeks of trial and extensive briefing, the ASBCA decided there was defective cost or pricing data, but set-off price understatements, and denied any recovery by the Government. When the Air Force moved for reconsideration, Crowell & Moring lawyers counter moved, asking the ASBCA to reverse its conclusions on issues concerning causation and the Government's reliance on the defective data. The Board completely reversed its prior decision and found that the Government relied on "competitive forces," not cost data, mooting the Air Force motion and providing an additional ground for denying the Government's entire claim.
• Declaratory Relief and Contract Breach: In SUFI Network Servs., Inc., ASBCA No. 54503, 04-2 BCA ¶ 32,714, aff'd on recon., 04-2 BCA ¶ 32,788, C&M successfully represented SUFI, who had a 15-year contract with the U.S. Air Force to provide telephone services at certain guest lodgings at bases in Germany. Under the contract, SUFI provided the phones and infrastructure on the bases for free and recouped its investment by collecting long-distance and local telephone usage charges from the lodging guests. When the Air Force required SUFI to allow access to other long-distance carriers that circumvented SUFI's system and its collection of revenues, SUFI requested declaratory relief that the Air Force was in material breach and that SUFI could elect to stop work under the contract. The Armed Services Board of Contract Appeals agreed, issuing a decision in SUFI's favor after a one-week trial.

Alternative Dispute Resolution. Crowell & Moring has been a leader in devising and using alternative procedures for resolving government contract disputes. The legislative history of the Administrative Disputes Resolution Act, Pub. L. No. 101-552, 105 Stat 2736 (1990), references Crowell & Moring's role.

Crisis Handbook for Government Contractors:
A Desktop Survival Guide For In-House Counsel [PDF]

Highlights