ASBCA Applies Affirmative Misconduct Standard In Denying Contractor's Estoppel Defense
Client Alert | 1 min read | 05.23.06
Despite the Government's earlier approvals of CAS Disclosure Statements found to have disclosed the contractor's accounting practice, the ASBCA in United Technologies Corp., Pratt & Whitney found no affirmative misconduct by the government estopping it from asserting a retrospective claim based on non-compliance with CAS. In following guidance from the Federal Circuit that to prevail on estoppel the Company was required to prove affirmative misconduct by the government, the Board found no inherent conflict between the Supreme Court's rulings in Winstar and other cases that, "when the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals" and Federal Circuit law applicable "in the context of the government's performance of contractual duties in conjunction with CAS rules and regulations . . . not applicable to contracts between private litigants."
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Recent sustain decisions by the U.S. Government Accountability Office (GAO) in Fluor Federal Solutions, LLC and Reliance Test & Technology send a clear message: when an agency tries to fix a Procurement Integrity Act (PIA) violation by committing a second one, the cure can be just as fatal as the disease. The cases involved the U.S. Air Force’s $1.8 billion procurement for O&M services at Elgin Air Force Base. During discussions, the Air Force inadvertently released a pricing overview slide with all offerors’ bottom-line evaluated costs to Reliance Test & Technology, which immediately notified the agency of the error. In response, the Air Force decided to level the playing field by providing the same information to all the other offerors in the procurement, stating, “[o]fferors may consider this disclosure in their [final proposal revision].”
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