The Federal Circuit recently affirmed the Civilian Board of Contract Appeals’ (CBCA) decision denying a pandemic-related claim in Pernix Serka Joint Venture v. Secretary of State, CBCA No. 5683, 20-1 BCA ¶ 37,589. Pernix involved a firm-fixed-price construction contract in Sierra Leone that was impacted by an Ebola outbreak several months into the project. The Department of State (DOS) declined to provide direction or to issue a suspension of work order, and instead advised Pernix to make its own business decisions regarding performance and employee safety. Pernix chose to demobilize its workforce and, later, to remobilize with the addition of its own on-site medical facility and services. Pernix then submitted a claim for the increased medical, safety, and demobilization and remobilization costs. DOS granted an adjustment to the schedule for the Ebola-related delays under the contract’s excusable delay clause, but denied Pernix’s monetary claim.
Continue Reading Federal Circuit Affirms Board Decision on Pandemic-Related Claim
You Snooze, You Lose: Contractor’s Compensation Costs are Not Expressly Unallowable When the Government Delayed in Setting Annual Cap
In Ology Bioservices, Inc., ASBCA No. 62633 (May 20, 2021), the Armed Services Board of Contract Appeals (the Board) held that the Government could not assess a penalty on the contractor’s fiscal year (FY) 2013 compensation costs for being expressly unallowable when the Government delayed publishing the compensation cap for FY 2013 by more
Time is Money: Contractor’s Claims for Payment Dismissed
In URS Federal Services, Inc., ASBCA No. 62475 (March 23, 2021), the Board dismissed a contractor’s three-count complaint for lack of jurisdiction on one count and for failure to state a claim on the other two. The Board first addressed Count III, which alleged that the Government had breached the implied duty of
“Mere allegations of fraud do not divest the Board of jurisdiction” – Government’s Motion to Dismiss Denied When It Cannot Prove that Appeal Resolution Depends on a Factual Determination of Fraud
In GSC Constr., Inc., ASBCA No. 62530 (Mar. 1, 2021), the Armed Services Board of Contract Appeals (the Board) denied the Government’s motion to dismiss for lack of jurisdiction. The contractor submitted a certified claim to the contracting officer (CO) that included costs associated with a change order, and then subsequently filed an appeal
“Here before. Many times. And without resolution.” – Board’s Dismissal of Contractor’s Appeals as Moot Precludes Analysis of Costs Repeatedly Disallowed on the Same Grounds
In L3 Technologies, Inc., ASBCA Nos. 61811, et al. (Mar. 1, 2021), the Armed Services Board of Contract Appeals (Board) granted the Government’s motion to dismiss the appeal, over the contractor’s objection, following the Contracting Officer’s (CO) unequivocal withdrawal of its cost disallowance claims. The contractor argued that its case was not moot despite
Show Me the Money? When a Sum Approximate Counts as a Sum Certain
In Creative Management Services, LLC, dba MC-2 v. U.S. (Feb. 26, 2021), the Federal Circuit affirmed a Court of Federal Claims decision dismissing a contractor’s appeal of the government’s Contract Disputes Act (CDA) claim as untimely, holding that the contractor appealed more than 12 months after receiving a contracting officer’s (CO) final decision. On appeal, the contractor alleged that the final decision was not a valid claim because it did not state a “sum certain” as required by the CDA, and this deficiency meant that the 12-month appeal period had not started to run.
The contractor was awarded a General Services Administration (GSA) task order to provide marketing and logistical support for an annual GSA conference, and was required to keep the revenue it collected for the conference in a trust account. When GSA canceled the conference in the fourth year and asked the contractor to return all remaining money in the trust account, the contractor refused and submitted a termination for convenience proposal to GSA. GSA subsequently issued two letters to the contractor demanding an accounting of the trust account and all money that remained in it. The CO then issued a final decision on the contractor’s termination proposal and on GSA’s claim to the remaining funds in the trust account, without providing a dollar amount. The contractor filed suit three years after the final decision was issued, challenging the government’s claim to the trust account funds.
Continue Reading Show Me the Money? When a Sum Approximate Counts as a Sum Certain
“A Claim By Any Other Name”: Jurisdiction Over Certified Supplement to Termination Proposal
In Globe Trailer Manufacturing, Inc., ASBCA No. 62594 (Jan. 28, 2021), the Armed Services Board of Contract Appeals (the Board) addressed whether a contractor’s certified supplement to a termination settlement proposal (TSP) constitutes a claim under the Contract Disputes Act. After termination, the contractor submitted a TSP that included costs of constructive changes. During
The Virginia Coronavirus Fraud Task Force
Virginia law enforcement agencies have created a new task force to address the increased threats of fraud associated with the COVID-19 outbreak. Specifically, the Virginia Coronavirus Fraud Task Force is a joint federal and state initiative that will be led by Assistant U.S. Attorney Kaitlin G. Cooke in the Eastern District of Virginia, Assistant U.S.
Silence = Acquiescence: Government Stuck with Contractor’s Interpretation that was Provided with its Proposal
On February 7, 2020, the ASBCA sustained the appeal of Command Languages, Inc. d/b/a CLI Solutions (CLI) against the Army over increased costs to translate technical manuals. CLI contracted with the Army to translate advanced level armored vehicle maintenance manuals for use by the Afghanistan Army. The advanced level manuals included tasks from basic level
We’ve Come to the End of the Road: FY 2018 Report to Congress Says DCAA Backlog is No More
The Defense Contract Audit Agency (“DCAA”) recently made public its Fiscal Year (FY) 2018 Report to Congress (“Report”), which, among other things, provides an update on its incurred cost audits and highlights DCAA’s industry outreach activities. Although the Report touts DCAA’s elimination of the incurred cost audit backlog, DCAA acknowledges that there still is a