Every year since 1979, the Armed Services Board of Contract Appeals (ASBCA) has issued a Report of Transactions and Proceedings (Report), which provides helpful statistics for contractors and practitioners regarding the ASBCA’s docket and success rates for contractor litigation and ADR. The ASBCA published its FY 2025 Report on October 30, 2025. Continue Reading ASBCA’s FY 2025 Report – A Look at the Numbers
A recent decision by the Armed Services Board of Contract Appeals (ASBCA) reinforces the FAR part 49 provisions governing terminations for convenience, which provide that contractors are entitled to fair compensation and that settlements for such terminations should not rigidly rely on cost and accounting data. In D-STAR Eng’g Corp., ASBCA Nos. 62075, 62780 (Apr. 28, 2025), the government had terminated the contractor’s cost-plus-fixed-fee research and development contract for convenience. Following the contractor’s submission of its termination settlement proposal (TSP), the government questioned certain costs claimed, disputed the fee owed to the contractor, determined it had overpaid the contractor, and issued a debt demand claim for disallowed costs. The contractor then submitted its own, affirmative claim incorporating its TSP and seeking additional costs and interest. The most interesting portion of the ASBCA’s decision is its discussion of the methods available to the parties to calculate the amount of fee to which the contractor was entitled following the termination for convenience, which we describe below. However, the ASBCA also addressed the allowability and allocability of various cost types that may be of interest, including termination settlement costs, direct labor, engineering overhead, and G&A.Continue Reading All Together Now: “Many Ways to Calculate Fee After a T4C”
On remand from the U.S. Court of Appeals for the Federal Circuit, in ECC International Constructors, LLC, ASBCA Nos. 59586, 59643, the Armed Services Board of Contract Appeals concluded that, by waiting until after a hearing on the merits and six years after the appeal was filed, the government forfeited its right to challenge the contractor’s satisfaction of the FAR’s sum-certain requirement for Contract Disputes Act claims.Continue Reading Wait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit Precedent
On November 1, 2023, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2023 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management
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.Continue Reading Strike When the Iron is Hot: Court of Federal Claims Found a Contractor’s Defense to a Termination Was Precluded by its Failure to Previously Assert Those Claims in Litigation Before the ASBCA
In StructSure Projects, Inc., ASBCA No. 62927, the Armed Services Board of Contract Appeals (Board) granted an appeal seeking recovery for increased costs resulting from the COVID-19 pandemic. The underlying task order involved design and alteration services for existing medical facilities at Travis Air Force Base, and included a specific Contract Line Item Number (CLIN) for the provision of temporary phasing facilities that the Government could use while the construction work was ongoing. When the pandemic began in March 2020, StructSure and its subcontractors had to stop their on-site construction work for 44 days because the Government had limited base access for contractors deemed to be not mission-essential. StructSure later sought schedule and monetary relief, but the Government only granted schedule extensions under the Default clause.Continue Reading COVID Costs Claim Succeeds: Contractor Entitled to Recover for Performance of Contract Despite Base Closure
On May 15, 2023, the Armed Services Board of Contract Appeals (“ASBCA” or “the Board”) in J&J Maintenance, Inc., d/b/a J&J Worldwide Services, ASBCA No. 63013 issued an instructive analysis of its jurisdiction to hear monetary and nonmonetary claims. Partially granting a government motion to dismiss, the ASBCA explained that, if a contractor does not seek monetary relief in its claim to the contracting officer (“CO”), then the contractor cannot seek monetary relief on appeal to the Board. Addressing the contractor’s claim for contract interpretation, however, the Board denied the government’s motion to dismiss and held that, where a contractor can reasonably articulate “significant consequences” of its claim other than the recovery of money, the fact that the claim may also have a financial impact on the parties does not strip the Board of jurisdiction. Continue Reading Money Talks, But So Do Other Impacts: ASBCA Underscores that a Claim with Possible Financial Impacts Is Not Fundamentally a Monetary Claim Unless It Has No Other Significant Consequences
This week’s episode covers annual reports from GAO and the ASBCA, a proposed rule regarding disclosure of greenhouse gas emissions and climate-related financial risk, and new requirement to refer any suspected instances of human trafficking to suspension and debarment officials, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes”
On November 1, 2022, the Armed Services Board of Contract Appeals (ASBCA) published its FY 2022 Report of Transactions and Proceedings, which provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, Central Intelligence Agency, National Aeronautics and Space Administration, Defense Logistics Agency, Defense Contract Management Agency
In Lockheed Martin Aeronautics Company, ASBCA No. 62209, the Armed Services Board of Contract Appeals (“Board”) denied the Air Force’s motion for summary judgment, which had argued that the “measured mile” approach to calculating disruption was legally untenable. In its decision, the Board noted that it has “accepted the measured mile approach as an