Background - Practices (Details)

Representative Engagements

  • Litigated claims for breach of contract and constructive changes on behalf of a contractor providing telephone services at U.S. Air Force guest lodgings in Germany under a 15-year contract, resulting in a series of decisions in favor of our client. In 2004, the Board granted SUFI's request for declaratory relief, finding the Air Force in material breach of the contract. SUFI Network Servs., Inc. ASBCA No. 54503, 04-2 BCA ¶ 32,714, aff'd on recon., 04-BCA ¶ 32,788. After stopping work and having its claims denied by the Contracting Officer, SUFI appealed. After a five-week trial, the board granted the contractor judgment on several lost revenue and extra work claims, including lost profits. Appeal of SUFI Network Services, Inc., ASBCA No. 55306, November 21, 2008. On Wunderlich Act review, the Court of Federal Claims found that the board had erred in denying or reducing SUFI's claimed damages, and recalculated them to award SUFI an additional $114 million plus interest. The government appealed and the Federal Circuit, while agreeing with most of the CFC's holdings as to the errors by the board, determined that remand to the board was the appropriate avenue for correcting the damages calculations. On remand, following the guidance and instructions of the CFC and Federal Circuit, the ASBCA awarded SUFI an additional $113 million, plus interest, while denying the Air Force's motion for reconsideration. The government sought review of the ASBCA’s award before the CFC, but its challenge was rejected on the basis that DOJ has no independent right to complain of an award accepted by the contractor. The government then appealed to the Federal Circuit, which affirmed the CFC’s dismissal of DOJ’s challenge and found DOJ’s assertions that the ASBCA failed to comply with the Federal Circuit’s mandate to be meritless.
  • The Government claimed entitlement to a refund of pension costs in connection with Unisys' sale of government contracts business units in 1995 to Loral. The Court of Federal Claims granted motions for summary judgment concerning reduction of the amount of the claim to reflect the benefit the Government received from Unisys' transfer of pension assets to the buyer. The same opinion was issued in cases involving three contractors pending before the same judge, largely on the basis of an argument made in our brief for Unisys.
  • Successfully argued as amicus curiae for reversal on reconsideration of an ASBCA decision holding that the inclusion of expenses related exclusively to performance of commercial contracts in an overhead pool allocable to commercial and Government contracts was a violation of the requirement in CAS 418 that indirect costs must be allocated on the basis of causal/beneficial relationships. AM General LLC, ASBCA Nos. 53610 & 54741, 07-1 B.C.A. ¶ 33,498
  • Successfully argued as amicus curiae that an ASBCA decision finding that the failure of a contractor to complete a "segment-closing" adjustment under CAS 413 during the same year as the closing had damaged the Government should be reversed on reconsideration. Raytheon Co., ASBCA No. 54907, 07-1 B.C.A. ¶ 33,655
  • Successfully argued to the Army Contract Adjustment Board that Holston Defense Corporation (HDC) should be awarded extraordinary contractual relief under Public Law 85-804 in the amount of $90 million, plus interest, for the projected costs of post-retirement benefits earned by HDC employees under a series of contracts with the United States Army. Application of Holston Defense Corporation, ACAB No. 1250, 2006 WL 4591482 (Sept. 27, 2006).
  • Successfully argued that a cost-reimbursement contract that was repriced because of Congressional funding changes after the contractor had made changes in its cost accounting practices was not an "affected contract" and therefore was not subject to a price adjustment reflecting the impact of the accounting changes. Lockheed Martin Corp., ASBCA No. 53822, 07-2 BCA ¶ 33,614.
  • Successfully argued that the Government was not entitled to a price adjustment for CAS-covered firm-fixed price contracts due to a change in accounting practice because the change did not cause the Government to incur increased costs. E-Systems, Inc., ASBCA Nos. 45771, 46409, 00-2 BCA ¶ 30,982
  • Viacom, Inc., Successor in Interest to Westinghouse Furniture Systems v. General Services Administration, GSBCA No. 15871, 05-2 BCA 33,080, Sept. 21, 2005. Crowell & Moring lawyers defeated GSA claims that Westinghouse Furniture Systems owed the Government more than $3.8 million in refunds for not disclosing its most favored customer discounts in negotiating a Federal Supply Schedule contract in 1984. On a dispute that lasted 15 years, and included Department of Justice fraud investigators (the fraud allegations were declined by DOJ), and after a contentious trial and briefing, the GSBCA decided that the purportedly undisclosed discounts were irrelevant to the pricing of the contract at issue and the damages sought by the Government were based on an unreasonable premise.
  • After Crowell & Moring represented construction clients in matters against WMATA, this government entity retained the firm in connection with the construction of Metro's Green Line. Crowell & Moring represented WMATA in litigation against Mergentime Corporation and Perini Corporation (Mergentime Corp. et al. v. McElhenny, et al.), involving contractor claims and terminations-for-default arising from such construction. The case was first tried in 1991, and decided in major part in WMATA's favor in 1993, but the judge died before deciding the entire case. The replacement judge completed the decision, but did not fulfill his record-familiarization obligations as a successor judge. As a result, the Court of Appeals reversed and vacated his decision. On remand, a new judge replaced the incapacitated second judge and ordered a new trial, which took place in 2001. In 2005, the judge issued the decision which upholds the default termination and grants our client $21 million in reprocurement costs, while limiting the contractor to only $200, 000 in delay damages.
  • United Technologies Corp. - Pratt & Whitney Division, ASBCA Nos. 51410, 53089, 53349, 04-1 BCA 32,556, modified on reconsideration, 05-1 BCA 32,860, aff'd 463 F.3d 1261 (Fed. Cir. 2006). Crowell & Moring lawyers defeated Air Force defective pricing claims, in the amount of $299 million, arising from the famous "Great Engine War," involving intense competition between Pratt & Whitney and General Electric from 1984-1990. The Air Force alleged that defective "cost or pricing data" submitted in 1983 increased the prices it paid. After eight weeks of trial and extensive briefing, the ASBCA decided there was defective cost or pricing data, but set-off price understatements, and denied any recovery by the Government. When the Air Force moved for reconsideration, Crowell & Moring lawyers counter moved, asking the ASBCA to reverse its conclusions on issues concerning causation and the Government's reliance on the defective data. The Board completely reversed its prior decision and found that the Government relied on "competitive forces," not cost data, mooting the Air Force motion and providing an additional ground for denying the Government's entire claim.
  • Emery Worldwide Airlines, Inc. v. U.S. Postal Service, 47 Fed. Cl. 461 (2000) Crowell and Moring represented a client in obtaining the court's declaration that the contract required price redetermination, ultimately leading to a $337 million recovery in 2001.