Archives: Claims and Contract Disputes

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Long Live Reasonableness: Reinforcing the Implied Duty of Good Faith and Fair Dealing in Government Contracts

Last month, in CanPro Investments Ltd. v. United States, COFC No. 16-268C (April 2017), the Court of Federal Claims (“COFC” or “Court”) denied the Government’s motion for reconsideration and reaffirmed its prior decision that CanPro Investments Ltd. (“CanPro”) may continue to litigate its claim for breach of the implied duty of good faith and fair … Continue Reading

A Tale of Two Contract Releases: One for the Government, One for the Contractor

On the heels of our recent post offering key takeaways from recent release of claims decisions, the ASBCA and the CBCA have published another round of notable opinions regarding contract releases:  Supply & Service Team GmbH, ASBCA No. 59630 and ServiTodo, LLC, CBCA 5524.  Both decisions are important, albeit for different reasons.  The ASBCA decision demonstrates … Continue Reading

The Latest Clue to Solving the Maropakis Riddle: The Affirmative Defense of Offset

When must a party’s “defense” be asserted as a Contract Disputes Act (CDA) claim in order to raise that defense during a Court of Federal Claims or Board of Contract Appeals proceeding? In Kansas City Power & Light Co. v. United States, the Court of Federal Claims moves us one step closer to solving this peculiar … Continue Reading

Key Takeaways From Recent Decisions Discussing Release Of Claims Provisions

Over the last few months, we’ve reported on various government contracts decisions that illustrate the impact a release of claims provision can have on contractors.  A few weeks ago, we published a Feature Comment in The Government Contractor (titled “Release Me? Five Things Every Government Contractor Needs To Know Before Signing A Release Of Claims”) … Continue Reading

Defense Industry Calls on the Pentagon to Withdraw Proposed Changes to IR&D Rules

In public comments submitted earlier this month, the defense industry and the public contract bar called upon the Department of Defense (DoD) to withdraw or significantly revise a proposed rule altering how independent research and development (IR&D) costs are treated.  These public comments reflect the defense industry’s growing concern that DoD is moving to constrain the industry’s … Continue Reading

CBCA Narrows Scope of Implied Duty of Good Faith and Fair Dealing in IDIQ Contracts

In TranBen, Ltd. v. Department of Transportation, CBCA 5448 (Jan. 26, 2017), the Civilian Board of Contract Appeals (“Board”) recently applied a restrictive view of the implied duty of good faith and fair dealing under an indefinite delivery/indefinite quantity (“IDIQ”) contract.  In its appeal seeking almost $14 million, TranBen, Ltd. (“TranBen”) alleged that the Department … Continue Reading

Ninth Circuit Rejects Heightened Standard for Demonstrating Likelihood of Competitive Harm Under FOIA Exemption 4

The Ninth Circuit recently confirmed that predicting the future with near certainty is not required when seeking to protect information from disclosure under Exemption 4 of FOIA. In a recent unpublished decision, the Ninth Circuit concluded that Sikorsky Aircraft’s small business subcontracting plan was “confidential commercial or financial information” exempt from disclosure under Freedom of … Continue Reading

ASBCA Shoots Down DCAA Overreach on Responsibility to Manage Subcontractors

A prime contractor is responsible for managing its subcontractors, but what exactly does that require? In a recent decision, the answer of the Armed Services Board of Contract Appeals was: not nearly as much as DCAA claimed. In Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, the Board ruled on a Government claim seeking … Continue Reading

A self-effectuating deemed release of claims? Say it ain’t so.

A few weeks ago, we provided a few tips for negotiating and assessing a release contained in a contract modification, and discussed why the Civilian Board of Contract Appeals (CBCA) found that a global release contained in one of many contract modification was ambiguous. Now, we consider a different scenario: what happens when a final … Continue Reading

When does a contract release release a claim? A classic contract tongue twister.

You are reviewing a contract modification and notice a paragraph titled “Release of Claims.”  Do you know what claims will be released by this language?  Or worse, the contracting officer just issued a final decision rejecting your claim (under the Contract Disputes Act) because the release in a contract modification constituted an accord and satisfaction. … Continue Reading

Déjà Vu: Continuing Resolution Raises Potential Pitfalls for Contractors

As Yogi Berra famously quipped, “It’s like Déjà vu all over again!”  In that spirit, Congress has again signaled that it will pass a continuing resolution to fund the Government through spring—despite vocal opposition from the Pentagon.  As a result of this short term funding mechanism, contractors face a number of potential pitfalls:  contract options … Continue Reading

Employee Efforts to Stop Employer FCA Violation is Protected Activity Even When No Distinct Possibility of FCA Litigation, says Fourth Circuit

The Fourth Circuit recently held, in an unpublished opinion, that the anti-retaliation or “whistleblower” provisions of the False Claims Act (“FCA”) protect an individual’s efforts to stop a contractor from violating the FCA, even when there is no “distinct possibility” of litigation.  This “distinct possibility” standard was adopted prior to 2009 when the whistleblower provision … Continue Reading

ASBCA Addresses CDA Jurisdiction Over Claims Involving Contractor Fraud

The Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) recently issued an opinion addressing several important, and controversial, topics of interest to government contractors.  The lengthy opinion addressed key issues related to the Board’s jurisdiction over government claims and affirmative defenses based on alleged contractor fraud, the Contract Disputes Act (“CDA”) statute of limitations, … Continue Reading

The CBCA Chews Up Agency’s Erroneous Allegation that Contractor Is Getting a ‘Second Bite at the Apple’

At the intersection of bid protests and claims, in Optimum Services, Inc. v. Department of the Interior, CBCA 4968 (May 2, 2016), the Civilian Board of Contract Appeals (“CBCA” or “Board”) recently encountered the question of whether a decision by the Government Accountability Office (“GAO”) can preclude a contractor from later maintaining an appeal of … Continue Reading

Contractor’s Timely Notice to the CO of an ‘Intent to Appeal’ is Good Enough for the ASBCA

A recent decision from the Armed Services Board of Contract Appeals (ASBCA) serves as an important reminder that a contractor’s timely notification to the contracting officer (CO) of its intent to appeal a CO’s final decision will satisfy the Board’s 90-day deadline for filing appeals under the Contract Disputes Act (CDA). Although the facts of … Continue Reading

CBCA Orders Government to File Complaint in Contractor’s Appeal of Government Claim

The Civilian Board of Contract Appeal’s recent decision in Muhammad v. Department of Justice provides another example of an Agency Board of Contract Appeals requiring the Government to file the complaint instead of the contractor—a growing trend which promotes more efficient appeals by helping to ensure that contractors are provided adequate notice of the basis … Continue Reading

Take it To the Limit: CBCA Limits Application of Maropakis Requirement to Initially Submit Certain Defenses to Government Actions as CDA Claims

Ever since the Federal Circuit held in M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010) that “a contractor seeking an adjustment of contract terms must meet the jurisdictional requirements and procedural prerequisites of the [Contract Disputes Act], whether asserting the claim against the government as an affirmative claim or … Continue Reading

Contractor Defeats Government’s Opportunistic Allegations of Fraud

On October 31, 2015, the U.S. Court of Federal Claims (CoFC) in Horn & Associates, Inc. v. United States (No. 08-415C) rejected three fraud-based counterclaims that were filed by the U.S. Government in response to a breach of contract action brought by the plaintiff, Horn & Associates (Horn), through a certified claim under the Contract … Continue Reading

In Long-Running CAS Case, the Court of Federal Claims Rejects a Government Attempt to Get Another Bite at the Apple

The Court of Federal Claims recently issued an opinion in the long running litigation between Sikorsky Aircraft Corporation (“Sikorsky”) and the United States regarding Sikorsky’s cost accounting practices. In this new decision, the court rejected a government attempt to pursue a new legal theory to challenge Sikorsky’s compliance with the Cost Accounting Standard (“CAS”), which … Continue Reading

New Obligations to Disclose Labor Law Violations Could Expose Contractors to Defamation Liability

Company communications with government authorities about potential criminal activity or wrongdoing by the company’s employees may expose that company to liability for defamation; that is, unless those communications are considered privileged.  In the majority of states, communications with police or prosecutors are afforded “qualified” or “conditional” privilege, and generally may be the basis of a … Continue Reading

Seventh Circuit Rejects Doctrine of Implied False Certification to Establish False Claims Act Liability

In United States v. Sanford-Brown, Limited, No. 14-2506 (7th Cir. June 8, 2015), the Seventh Circuit declined to adopt the “so-called doctrine of implied false certification” to establish liability under the False Claims Act (“FCA”). This doctrine treats an invoice submitted by a contractor as an implicit representation that the contractor has complied with any … Continue Reading

CBCA Takes Pragmatic View When Finding Jurisdiction Over A Sponsored-Subcontractor CDA Appeal

In Cooley Constructors, Inc. v. GSA, CBCA No. 3905 (June 8, 2005), the Civilian Board of Contract Appeals (CBCA) found that the substance of an appeal – not the form – is the prevailing consideration when analyzing whether the CBCA has jurisdiction to hear a sponsored-subcontractor appeal under the Contract Disputes Act (CDA). Consistent with … Continue Reading

COFC: In “Quirky CDA Realm,” Contractor Need Not Submit Its Own Claim Before Appealing Adverse Contracting Officer Decision

Judge Mary Ellen Coster Williams of the Court of Federal Claims recently clarified the procedural requirements of the Contract Disputes Act (“CDA”) that a contractor must meet before appealing an adverse Contracting Officer decision.  In Total Engineering, Inc. v. United States, No. 13-881C (Fed. Cl. Jan. 26, 2015), the Army Corps of Engineers terminated Total’s … Continue Reading

ASBCA Finds Kickbacks Under Three of Sixteen Task Orders is Sufficient to Taint Contractor’s Entire Claim

Background: In Appeal of Laguna Construction Company, Inc., the Armed Services Board of Contracts Appeals (“ASBCA”) found that a contractor’s receipt of kickbacks from subcontractors was both criminal fraud and a material breach of the contract, which eliminated the Government’s obligation to reimburse the contractor for additional work, even if that work was not itself … Continue Reading
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