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On December 20, 2023, the Armed Services Board of Contract Appeals (Board) denied the government’s motion to dismiss a prime contractor’s pandemic-related claims filed on behalf of its subcontractors.  The Board rejected the government’s arguments that the claims failed to state any claims for relief that could be granted, were barred by the affirmative defense of sovereign acts, and failed to provide separate sums certain for purported sub-claims.   Continue Reading ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward

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On September 6, 2023, the Department of Energy (DOE) issued a Class Deviation removing the FAR 52.204-7 requirement that a contractor maintain its System for Award Management (SAM) registration for the entire time from proposal submission until contract award, without any lapse.  As background, FAR 52.204-7 has since 2018 provided that “[a]n Offeror is required

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This week’s episode covers a Federal Circuit decision about jurisdiction under the Contract Disputes Act, a claim for additional costs relating to COVID related delays, and a False Claims Act settlement touching on cybersecurity and self-disclosure, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast

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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.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

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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

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In ECC Int’l Constructors Inc. v. Army, No. 2021-2323 (Fed. Cir. Aug. 22, 2023), the Court of Appeals for the Federal Circuit overturned longstanding precedent by holding that the requirement to state a “sum certain” in a claim submitted under the Contract Disputes Act (CDA) is not a jurisdictional requirement.  The Court based its decision on recent Supreme Court guidance to “treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.”  The Court parsed the CDA and found that Congress never used the words “sum certain,” evidencing that Congress did not intend the requirement to be jurisdictional.  This is important because jurisdictional requirements can be raised at any time—even years after the claim was filed and a full hearing on the merits was held—and result in dismissal of the case.  The Court explained that the “sum certain” is “nonetheless a mandatory rule that claimants must follow.” Continue Reading Sum-Thing Is Missing from the Contract Disputes Act: Federal Circuit Holds that “Sum Certain” Requirement is Non-Jurisdictional

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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

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On April 26, the Federal Circuit issued a decision in Crawford v. United States (a C&M case), holding that a U.S. Army combat veteran is entitled to recover his attorneys’ fees arising from a dispute related to obtaining medical retirement benefits earned during his service.  In the underlying dispute on remand to the Army Board

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On April 6, 2023, the Civilian Board of Contract Appeals (CBCA), in BES Design/Build, LLC, CBCA 7585, dismissed a contractor’s appeal for lack of jurisdiction, finding the appeal untimely, and underscoring that a contractor cannot reset the 90-day appeal window by resubmitting its original claim.

On February 24, 2021, BES Design/Build, LLC (BES) submitted

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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