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ASBCA Rules that Navy’s Desires Are Not an Option

Client Alert | 1 min read | 02.13.19

In Fluor Federal Solutions (Jan. 10, 2019), the ASBCA agreed with Fluor that the Navy erroneously modified the terms of a contract option and granted summary judgment to Fluor. The Navy argued that it had the right to make the modification, which reduced the amount it paid for services Fluor provided at four military bases for the option year. The Board concluded the modification could only be made with proper documentation of the rationale behind the change. As the Navy failed to provide such documentation, the Board held that the modification to exercise the option was “unenforceable” (as opposed to a “defective” option). The ASBCA awarded Fluor $14.8 million, the difference between Fluor’s estimate of its costs to perform the modification (plus reasonable profit) and the amount the Navy awarded for the contact option. Fluor’s estimate was based on its actual costs to perform the contract in the prior year. 


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Client Alert | 3 min read | 06.12.26

DOJ Guidance Backs Away From Disparate Impact Liability

On June 9, 2026, the U.S. Department of Justice (DOJ) issued a formal opinion concluding that the Equal Opportunity Employment Commission’s (EEOC) existing interpretations of Title VII of the Civil Rights Act of 1964 (Title VII) disparate-impact liability, including the Uniform Guidelines on Employee Selection Procedures (UGESP), are unconstitutional. According to the opinion, EEOC’s prior interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer’s likely intent, rather than treating disparate impact as an evidentiary mechanism to “smoke out” intentional discrimination. DOJ found that this approach functions as a “qualified racial-proportionality mandate” that places “a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” The opinion fulfills one mandate of Executive Order 14281, which rejected disparate-impact liability insofar as it “creates a near insurmountable presumption that unlawful discrimination exists wherever there are any differences in outcomes among different [demographic groups].”...

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