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
In GSI & Whitesell-Green JV (Jan. 30, 2020), the Armed Services Board of Contract Appeals denied a contractor’s request for Equal Access to Justice Act fees that reflected its employees’ costs of supporting the entitlement appeal. The Board rejected the contractor’s argument that its employees’ costs were similar to attorney’s fees finding support in Fanning
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In L-3 Commc’ns (Apr. 25, 2016), the ASBCA dismissed as moot the appeals of two final decisions that the contractor had argued were barred by the CDA statute of limitations when the cognizant ACOs rescinded the final decisions after the contractor had appealed. The board held that, although the COs had not yet
In AeroVironment, Inc. (Mar. 30, 2016), following an apparent settlement of the government’s cost disallowance claim, the ASBCA denied the government’s request to amend its answer (in order to “clarify” entitlement to additional quantum) because the proposed amendments constituted new “claims” that required new final decisions. Acknowledging that parties may ordinarily revise quantum without
In this year’s set of legislative proposals forwarded to Capitol Hill, DoD and NASA have again requested changes to the Program Fraud Civil Remedies Act (“PFCRA”) to create, in the government’s view, a more viable administrative remedy for fraud and false claims totaling less than $500,000. The administrative process would proceed similarly to the suspension and debarment process with a fixed administrative record and an administrative decision official within each agency. See proposed Section 805 in the Fifth Package of Legislative Proposals Sent to Congress for Inclusion in the National Defense Authorization Act for Fiscal Year 2017.
PFCRA (Chapter 38 of Title 31, United States Code) was enacted in 1986 as a government wide administrative mechanism for combating small-dollar fraud. As it stands, PFCRA allows federal executive branch agencies, with Department of Justice (“DoJ”) approval, to address false, fictitious, or fraudulent claims and statements where the alleged liability is less than $150,000. At the time of its enactment, Congress considered PFCRA to be a remedy to DoJ’s declination to pursue criminal or civil penalties where the alleged fraudulent activity resulted in little to no financial loss to the government. Since then, however, PFCRA has been viewed by some government agencies, including the DoD, as being cumbersome to the point of making it impractical for government agencies to pursue a remedy under the Act. Indeed the purpose for the proposed amendments is to create an “effective” administrative remedy.Continue Reading DoD And NASA Again Seek Changes to the Program Fraud Civil Remedies Act
On October 20, the Armed Services Board of Contract Appeals published its FY 2015 Report of Transactions and Proceedings. The report provides statistics regarding the adjudication of appeals between contractors and the Army, Navy, Air Force, Corps of Engineers, DLA, DCMA, other Defense agencies, CIA, NASA, and the Washington Metropolitan Area Transit Authority. This year’s
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
In Raytheon Co., ASBCA Nos. 57801 et al. (May 7, 2015), the Board held that under FAR 30.606 contractors may not offset cost impacts from simultaneous accounting changes within the same business segment, which if not reversed on appeal will cause major disruptions when contractors make multiple changes in cost accounting practices made after 2005
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