Insights

A recent Armed Services Board of Contract Appeals decision provides useful guidance on when the government may (or may not) waive its defense that a contractor’s claim failed to state a sum certain. In GE Renewables US, LLC, the contractor had submitted a claim to the contracting officer for a determination that the contractor had the right to an economic price adjustment (EPA) due to an inflation-related price increase. Notably, the contractor did not provide the value of its requested adjustment in its claim. The contracting officer denied the claim, and the contractor appealed to the Board.

On December 17, 2024, the Civilian Board of Contract Appeals (Board) announced its plan to launch a new Electronic Docketing System (EDS).  Once implemented, the Board will require use of the new EDS for most submissions. 

The Armed Services Board of Contract Appeals (Board) recently issued notable reminders to contractors regarding its jurisdictional authority and the importance of timely filing claims.  The Board explained in DSME Construction Co., Ltd., ASBCA 63878 (July 30, 2024), that it may retain jurisdiction over a dispute even when a different forum is listed in the contract.  In Platinum Services., Inc., ASBCA No. 63878 (Aug. 1, 2024), the Board instructed contractors to be mindful of the CDA’s statute of limitations period, even when seeking to amicably resolve a dispute.

In the Crowell & Moring case Parsons Government Services, Inc. v. Department of Energy, CBCA 7822, the Civilian Board of Contract Appeals (Board) denied the government’s motion to dismiss concerning Parsons’ claim for additional incentive fee in connection with its performance operating a salt waste processing facility at DOE’s Savannah River Site.  The underlying contract relates to a first-of-its-kind facility to treat and reduce liquid radioactivity in nuclear waste.  In its decision, the Board rejected the government’s motion to dismiss, holding that Parsons had pled sufficient facts to support its claims regarding superior knowledge, impracticability of performance, and breach of the duty of good faith and fair dealing.

In MLU Services, Inc. v. Department of Homeland Security, CBCA No. 8002, the Civilian Board of Contract Appeals (Board) denied a Federal Emergency Management Agency (FEMA) motion to dismiss for failure to prosecute, which the agency filed just four days after MLU failed to timely submit one of its initial pleadings.

On December 19, 2023, the United States District Court for the District of Utah denied summary judgment in part to Vanderlande Industries (Vanderlande), holding that a reasonable jury could find that Vanderlande negligently misrepresented the viability of subcontractor Ludvik Electric Co.’s (Ludvik) pass-through claims during the parties’ settlement negotiations over the claims. 

The San Diego Union-Tribune reports that a homeowners association (HOA) in California has reached an agreement with the Department of Justice (DOJ) to resolve allegations that the HOA obtained approximately $1.5 million in loans through the Paycheck Protection Program (PPP) that the HOA was not entitled to receive due to its status as a 501(c)(4) organization.  The HOA reportedly will pay $2,037,451 to resolve the allegations.  Of that amount, $244,494 will go to Wade Riner—the relator who initiated the action by filing a complaint under seal pursuant to the qui tam provisions of the False Claims Act (FCA).  According to the Tribune’s reporting, Riner has filed dozens of similar FCA suits across the country.

The Civilian Board of Contract Appeals (CBCA) recently published its Annual Report for FY 2023, providing statistics regarding the adjudication of appeals between contractors and civilian agencies such as the Department of State, the Department of Veterans Affairs, the General Services Administration, the Department of Transportation, the Department of Agriculture, the Department of the Interior, and the Central Intelligence Agency. According to this year’s report, contractors prevailed in 45% of the appeals decided on the merits, which is much higher than the 21% success rate in 2022. The report also shows that the CBCA’s alternative dispute resolution (ADR) program remains successful—resolving 70% of appeals for which the parties completed ADR. All of this came in the context of a substantial jump in the number of appeals, with 246 new appeals docketed in 2023 compared to 177 in 2022 and 185 in 2021. Click here to view the full CBCA report.

In Flatland Realty, LLC, ASBCA No. 63409, the Armed Services Board of Contract Appeals (Board) granted an appeal seeking damages, plus interest, from an improper termination for default.  In an uncommon result, the Board awarded lost profit expectancy damages because the government had improperly terminated the contract, which did not incorporate a termination for convenience clause.

On November 1, 2023, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2023 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management Agency, other Defense agencies, Non-Appropriated Fund Instrumentalities, and the Washington Metropolitan Area Transit Authority.

In StructSure Projects, Inc., ASBCA No. 62927, the Armed Services Board of Contract Appeals (Board) granted an appeal seeking recovery for increased costs resulting from the COVID-19 pandemic.  The underlying task order involved design and alteration services for existing medical facilities at Travis Air Force Base, and included a specific Contract Line Item Number (CLIN) for the provision of temporary phasing facilities that the Government could use while the construction work was ongoing.  When the pandemic began in March 2020, StructSure and its subcontractors had to stop their on-site construction work for 44 days because the Government had limited base access for contractors deemed to be not mission-essential.  StructSure later sought schedule and monetary relief, but the Government only granted schedule extensions under the Default clause.