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In Appeals of LRV Environmental, Inc., the ASBCA considered the issue of whether or not the Government’s “reconsideration” of a contracting officer’s final decision acts to re-set the 90-day clock for jurisdictional purposes under the CDA.  In LRV, the CO issued a final decision, and subsequently reconsidered a portion of that decision, leading

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On April 8, Crowell & Moring lawyers will present “The World of Sponsored Claims – Being Caught in the Middle,” at a forum hosted by the Association of Corporate Counsel of the National Capital Region.  This forum will be of interest to prime contractors and subcontractors alike, and will focus on some of the key

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On February 12, 2015, the Federal Circuit issued an opinion in K-CON Building Systems, Inc. v. United States, addressing jurisdiction over contractor claims under the Contract Disputes Act (“CDA”).

Specifically, K-CON Building Systems explores the implications of claim identification, and whether a contractor can add a new claim to a pending matter when the new claim seeks a different remedy or is based upon a different legal theory.  In this case, K-CON Building Systems, Inc. (“K-CON”) contracted with the federal government to construct a “cutter support team building” for the U.S. Coast Guard.  The contract included a liquidated damages clause and obligated K-CON to pay $589 for each day of delay.  When K-CON completed the building 186 days after the contract’s completion date, the Coast Guard withheld $109,554 in liquidated damages due to alleged delay.
Continue Reading Federal Circuit Permits Contractor to Add New Claim to Pending Complaint

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As we discussed during Crowell & Moring’s webinar last week Top Headlines, Headaches, and Developments for Government Contractors to Watch in 2015, the CDA’s six-year statute of limitations has been a hot topic for both contractor and Government claims over the past several years.

Until recently, the case law at the Federal Circuit, the Boards, and the Court of Federal Claims was unanimous that the statute of limitations was jurisdictional. That meant that claims that accrued more than six years prior to their assertion would be null and void – contractors and the Government could not waive or toll the statutory deadline, and the tribunals had no jurisdiction to hear cases based on untimely claims. 
Continue Reading Claims Practice Bulletin: What the Newly Interpreted “Non-Jurisdictional” CDA Statute of Limitations Means for Contractors

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As we discussed during Crowell & Moring’s webinar last week Top Headlines, Headaches, and Developments for Government Contractors to Watch in 2015, the recent ASBCA decision in Laguna Construction is likely to reverberate in 2015 and beyond. This case introduced the doctrine of “antecedent breach” in the ASBCA as a means of denying legitimate contractor claims.

In Laguna, after the completion of the contract, the contractor submitted a $3 million claim based on a dozen separate task orders under a large IDIQ contract. Mid-way through litigation, two contractor employees pled guilty to receiving kickbacks from subcontractors on some, but not all, of the Task Orders at issue in the litigation. The Government then added Fraud as an affirmative defense at the Board, arguing that Laguna’s entire claim should be denied because Laguna’s employees had pled to Fraud on some of the Task Orders.
Continue Reading Claims Practice Bulletin: Performance Fraud, Imputed Liability, and Antecedent Breach

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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.
Continue Reading Recent ASBCA Decisions Offer Refresher on Adherence to Board and CDA Requirements