Steve McBrady

Several recent Board decisions have turned on issues that serve as a reminder to contracting parties that a critical element of litigating CDA claims is adherence to statutory requirements and the Board’s rules. In Appeal of WorleyParsons, the ASBCA dismissed the government’s claim for alleged CAS violations as a nullity under the CDA, for two fundamental reasons: (1) it could not hear an appeal concerning a contract with the Coalition Provisional Authority in Iraq (CPA), because the CPA was not an “executive agency,” and (2) the Appellant named in the claim was a member of the JV that signed the contract, but not the JV itself.

The Board’s position on Contracts with the CPA relied on prior precedent (the MAC case) holding that the CPA was an international organization, and not an Executive Agency of the Government (which is a condition of the Board’s jurisdiction under the Contract Disputes Act). Thus, the Board lacked jurisdiction to hear the appeal.
For contractors, the more interesting aspect of the decision is the Board’s holding that it lacked jurisdiction over the Government’s claim against a member of a JV. In that part of the decision, the Board said three things of particular note. First, it is a prerequisite to CDA jurisdiction that the contractor be “a party to a Federal Government contract.” In WorleyParsons, the joint venture was actually the party to the contract. But instead of filing a claim against the JV, the Government filed its claim against a member of the joint venture, which in this case was considered equivalent to filing a claim against a subcontractor. Like a subcontractor, the individual member of the JV was not in privity with the Government. Second, the Board pointed out that simply because members of a JV may be jointly and severally liable for the JV’s debts, that does create privity between the Government and the JV members, which again is a prerequisite for purposes of filing a CDA claim. Third, the Board pointed out that cases where members of a JV have been allowed to pursue claims on behalf of the JV against the Government are distinguishable. In those cases, the claims were pursued on behalf of the JV and formally in the JV’s name. The key takeaway from WorleyParsons is a reminder that when asserting a claim on behalf of a joint venture (or defending against a Government claim), the party in interest must be the JV. Otherwise, the Board will not have jurisdiction under the Contract Disputes Act.

Notably, WorleyParsons is not the only recent decision where the Board has drawn fairly stark lines. In Appeal of Alnawars Co., the Board dismissed a contractor’s appeal for lack of jurisdiction when it determined that the contractor had waited 140 days to appeal the Contracting Officer’s Final Decision, reaffirming that under the Contract Disputes Act, the 90-day window to appeal to the boards of contract appeals is “statutory, strictly construed, and cannot be waived.” And in Appeal of Zoeller, the Board denied a contractor’s Rule 29 motion for reconsideration when it determined that the contractor had filed its request 32 minutes after the Board’s 30-day deadline. Each of these cases serves to illustrate the importance of adhering to the Board’s rules and CDA’s jurisdictional requirements when litigating claims.