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Laches Defense No Longer Available in ASBCA Appeals

July 8, 2021

In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Board granted Lockheed Martin’s motion for summary judgment on the issue of whether the Government can assert laches as an affirmative defense to a Contract Disputes Act claim. In a case of first impression, Lockheed Martin argued that the affirmative defense of laches is not available in CDA appeals because laches is an equitable doctrine, which may not be applied when there is an applicable statute of limitations, such as the CDA’s six-year statute of limitations. The Air Force argued that FAR 33.203(c) preserves the equitable defense of laches because the clause states that the Boards of Contract Appeals “continue to have all of the authority they possessed before the Disputes statute with respect to disputes arising under a contract, as well as authority to decide disputes relating to a contract.” The Board held that, consistent with the U.S. Supreme Court’s decisions in SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954 (2017) (a patent case) and Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) (a copyright infringement case), laches is not available when there is a “legislatively-enacted statute of limitations,” and FAR 33.203(c) does not preserve the pre-FASA affirmative defense of laches. The Board noted that while the Federal Circuit has not yet applied SCA Hygiene in a CDA case, the Board is bound by the precedent of the United States Supreme Court, and therefore does not need to await a Federal Circuit decision.

The Board’s decision in Lockheed Martin Aeronautics Company marks the end of laches as an affirmative defense to claims brought within the CDA’s six-year statute of limitations at the ASBCA.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

J. Chris Haile
Partner – Washington, D.C.
Phone: +1.202.624.2898
Skye Mathieson
Partner – Washington, D.C.
Phone: +1.202.624.2606
Stephen J. McBrady
Partner – Washington, D.C.
Phone: +1.202.624.2547
Michelle D. Coleman
Counsel – Washington, D.C.
Phone: +1.202.654.6708
John Nakoneczny
Associate – Washington, D.C.
Phone: +1.202.624.2814