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On August 25, 2023, in ECC CENTCOM Constructors, LLC v. United States, COFC No. 21-1169, the U.S. Court of Federal Claims (“the Court” or “COFC”) barred ECC CENTCOM Constructors, LLC (“ECC”) from asserting claims that should have been asserted before the Armed Services Board of Contract Appeals (“ASBCA”) citing the doctrine of claim preclusion. 

At the ASBCA, ECC had appealed a termination for default and sought time extensions and damages due to excusable delay.  The Board dismissed ECC’s appeal, finding that the Contracting Officer (“CO”) acted reasonably in terminating the contract and finding that ECC failed to present its excusable delay claims to the CO as required under M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010).  ECC requested a stay to allow it time to present its delay claims to the CO, but the Board denied the request stating that it was untimely and futile because ECC’s own expert testified that less than half of the delays were excusable, which meant that the CO’s termination decision would still be justified.  ECC appealed the ASBCA’s decision to the U.S. Court of Appeals for the Federal Circuit, where the Board’s decision was affirmed.

Two years after the ASBCA decision, ECC submitted certified claims to the CO seeking time extensions of 273 days, delay damages of $2,534,827.23, a conversion of the wrongful termination for default to one for convenience, and a withdrawal and reevaluation of its Contractor Performance Assessment Reporting System rating.  The delays were the same delays that ECC failed to properly assert before the ASBCA.  When the CO informed ECC that a final decision would not be issued, ECC filed a complaint at the COFC asserting three different delay claims—all of which ECC had attempted to raise at the ASBCA. 

The government moved for summary judgment, arguing that ECC’s delay claims were barred by the doctrine of claim preclusion because ECC previously challenged its termination before the ASBCA on several grounds, including the same excusable delays alleged before the Court.  ECC argued that claim preclusion was inapplicable because the Board dismissed these claims for lack of jurisdiction rather than issuing a decision on the merits.  The Court disagreed, holding that claim preclusion was still supported, even though the initial action was dismissed for lack of subject matter jurisdiction, because some issues in the appeal were decided on the merits and the jurisdictional defects were solely due to the contractor’s failure to submit all its claims to the CO at one time.  Since the termination for default was the subject of the ASBCA appeal, ECC should have and could have litigated any plausible defense before the ASBCA as “the master of its appeal.”  Accordingly, the Court found that ECC may not “proceed to piecemeal litigation of its claims through selectively creating or limiting [the] ASBCA’s or this Court’s jurisdiction over its claims.” 

This decision is an important reminder to contractors to submit defenses to a termination to the CO before appeal to preserve those defenses before the Board of Contract Appeals or Court of Federal Claims and avoid the risk that the company is precluded from raising the issue in a later action.

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Photo of Michelle Coleman Michelle Coleman

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and…

Michelle D. Coleman is a partner in Crowell & Moring’s renowned Government Contracts Group in the firm’s Washington, D.C. office. Michelle advises clients from diverse industries in connection with contract disputes and other government contract matters, including Contract Disputes Act (CDA) claims and requests for equitable adjustments, terminations, prime-sub disputes, other transaction authority, and AI.

Michelle also has an active pro bono practice, representing clients as an attorney volunteer with the Washington Legal Clinic for the Homeless. Michelle has helped multiple clients receive long term housing through the Rapid Rehousing Program and other permanent voucher programs. In addition to being a volunteer, Michelle serves as an ambassador and as co-chaired the firm’s fundraising campaign for the Clinic for the last two years.

Prior to working at Crowell & Moring, Michelle served as an attorney in the Air Force’s Acquisition Law and Litigation Directorate, where she provided acquisition and litigation risk advice on procurements valued over $14 billion on major Air Force procurements. She also served as a trial attorney in the Air Force Legal Operations Agency, Commercial Law and Litigation Directorate. As a trial attorney, Michelle litigated complex contract disputes before the Armed Services Board of Contract Appeals (ASBCA) and bid protests before the Government Accountability Office (GAO).

As an Air Force litigator, Michelle litigated a broad range of issues before the ASBCA, including organizational conflicts of interest; small business issues; price realism analysis; past performance; NAICS code issues; technical acceptability; nonmanufacturing rule, brand name, or equal issues; construction claims; commercial items; terminations; assignment of claims; reprocurement; limitation of funds; release; differing site conditions; setoffs/withholding; and evidentiary issues. Among the construction cases, Michelle litigated a $28 million Air Force design-build construction claim involving complex differing site conditions and delay issues, and she also litigated and won a claim for alleged defective specifications, undisclosed information, constructive interpretation, and technical impossibility for a contract for the design and construction of an Air Force dynamic break test stand.

Before her Air Force career, Michelle was employed by a defense contractor, where she gained valuable government contract experience in her roles as a business analyst and a subcontracts administrator. Michelle’s government and contractor experience gives her the unique ability to take both parties’ perspectives into consideration when providing advice on government contract issues.

Photo of Amanda McDowell Amanda McDowell

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and…

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and state and federal regulatory compliance.

Photo of Zariah Altman Zariah Altman

Zariah helps clients with antitrust investigations, government contracts matters, including bid protests, and other complex and fast-paced disputes.

In her antitrust practice, Zariah provides counsel on a range of issues and agency actions, including investigations into company hiring practices, such as no-poach/non-solicitation. In…

Zariah helps clients with antitrust investigations, government contracts matters, including bid protests, and other complex and fast-paced disputes.

In her antitrust practice, Zariah provides counsel on a range of issues and agency actions, including investigations into company hiring practices, such as no-poach/non-solicitation. In addition, in the area of government contracts, she advises clients on agency submissions, state and federal regulatory compliance, including FOIA requests, and bid protests.

She received her J.D., cum laude, from Howard University School of Law and served as a senior articles editor for the Howard Law Journal. Zariah worked as a Henry Ramsey Dean’s Fellow for a legal writing professor and as a student attorney in Howard’s Reentry Clinic, where she represented clients with criminal records that were seeking to have their records sealed or to terminate their parole early.