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  3. |“Mere allegations of fraud do not divest the Board of jurisdiction” – Government’s Motion to Dismiss Denied When It Cannot Prove that Appeal Resolution Depends on a Factual Determination of Fraud

“Mere allegations of fraud do not divest the Board of jurisdiction” – Government’s Motion to Dismiss Denied When It Cannot Prove that Appeal Resolution Depends on a Factual Determination of Fraud

Client Alert | 1 min read | 05.07.21

In GSC Constr., Inc., ASBCA No. 62530 (Mar. 1, 2021), the Armed Services Board of Contract Appeals (the Board) denied the Government’s motion to dismiss for lack of jurisdiction.  The contractor submitted a certified claim to the contracting officer (CO) that included costs associated with a change order, and then subsequently filed an appeal with the Board from the CO’s deemed denial of the claim.  The Government filed a motion to dismiss, alleging that the Board lacked jurisdiction to hear the appeal because it would “necessarily” have to make a determination of fact as to whether the contractor had made false claims and/or false statements in support of its claim. 

The Board agreed that making a factual determination of fraud is beyond its jurisdiction, but disagreed that it would need to make that factual determination to resolve the appeal.  Instead, the Board held that the appeal presented an issue of contract interpretation – specifically, whether a subset of work was part of the contract or extra work.  The Board further stated that it could “consider” statements submitted by the contractor’s president and owner, but that it did not have to decide the ultimate question of whether the statements were fraudulent or false to decide whether the work at issue was outside the scope of the contract, and thus, the appeal was properly before it.

This case underscores that in cases involving parallel investigations, “mere allegations of fraud do not divest the Board of jurisdiction.”

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Client Alert | 3 min read | 03.28.24

UK Government Seeks to Loosen Third Party Litigation Funding Regulation

On 19 March 2024, the Government followed through on a promise from the Ministry of Justice to introduce draft legislation to reverse the effect of  R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [2023] UKSC 28.  The effect of this ruling was discussed in our prior alert and follow on commentary discussing its effect on group competition litigation and initial government reform proposals. Should the bill pass, agreements to provide third party funding to litigation or advocacy services in England will no longer be required to comply with the Damages-Based Agreements Regulations 2013 (“DBA Regulations”) to be enforceable....