Deal or No Deal? Board Reminds Contractors that Money “Awarded” in Final Decision May Evaporate If Appealed
Client Alert | 1 min read | 09.21.17
In BES Design/Build, LLC v. Dep’t of Veterans Affairs (CBCA 5640), the Board denied BES’ motion “for the immediate release of funds ‘awarded’” in the CO’s final decision, finding that, once appealed, “[a] final decision…is not binding on the agency, because…that decision is reviewed de novo by the Board.” Specifically, following BES’ performance of additional work, BES claimed $168,847.06 and additional time. The CO found that BES was entitled to 16 additional days and $21,998.34. The CO drafted a modification consistent with such decision and interest due. BES, however, made additional “‘pen and ink’ changes to the modification,” which the CO declined to incorporate. Ultimately, BES refused to sign the modification and, instead, appealed the CO’s decision. Three months later, BES filed the motion for immediate release of the “awarded” funds, but neither the agency nor the Board is bound by the CO’s findings and offer of payment once appealed; the Board may award less, or more, than the offered amount.
Contacts
Insights
Client Alert | 3 min read | 11.21.25
On November 7, 2025, in Thornton v. National Academy of Sciences, No. 25-cv-2155, 2025 WL 3123732 (D.D.C. Nov. 7, 2025), the District Court for the District of Columbia dismissed a False Claims Act (FCA) retaliation complaint on the basis that the plaintiff’s allegations that he was fired after blowing the whistle on purported illegally discriminatory use of federal funding was not sufficient to support his FCA claim. This case appears to be one of the first filed, and subsequently dismissed, following Deputy Attorney General Todd Blanche’s announcement of the creation of the Civil Rights Fraud Initiative on May 19, 2025, which “strongly encourages” private individuals to file lawsuits under the FCA relating to purportedly discriminatory and illegal use of federal funding for diversity, equity, and inclusion (DEI) initiatives in violation of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). In this case, the court dismissed the FCA retaliation claim and rejected the argument that an organization could violate the FCA merely by “engaging in discriminatory conduct while conducting a federally funded study.” The analysis in Thornton could be a sign of how forthcoming arguments of retaliation based on reporting allegedly fraudulent DEI activity will be analyzed in the future.
Client Alert | 3 min read | 11.20.25
Client Alert | 3 min read | 11.20.25
Client Alert | 6 min read | 11.19.25
