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
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
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
In this episode, hosts Rob Sneckenberg and Olivia Lynch are joined by colleague Amy O’Sullivan to discuss the Court of Federal Claims’ recent decision in HWI Gear, Inc., which held that the solicitation’s inclusion in full of the text of FAR 52.219-28 required a small business offeror to recertify its size status prior to award
In Bitmanagement Software GmbH v. United States, the Federal Circuit vacated and remanded a decision by the Court of Federal Claims (COFC) that found the Navy was not liable for copyright infringement even though it was undisputed that the Navy made 429,604 copies of Bitmanagement’s BS Contact Geo software when it only paid for
On June 27, 2018, in Appeal of CiyaSoft Corporation, the Armed Services Board of Contract Appeals held that the Government can be bound by terms of a commercial software license agreement that the contracting officer (CO) has neither negotiated nor seen. CiyaSoft Corporation (CiyaSoft) submitted a claim asserting that the Army had breached its contract to purchase computer software by using more copies of the software than were permitted by the contract. The Army denied the claim, in part, because the contract contained no terms specifying how the government would secure and protect the software. Instead, CiyaSoft had included license terms limiting the software’s use (i) inside the box containing the CDs with the software, (ii) on a piece of paper inside the software’s shrinkwrap, and (iii) in clickwrap that was displayed during the software’s installation process. On appeal, the Board found that although the contract included no license terms and the CO never saw or discussed with CiyaSoft the license terms that accompanied the software delivery, the CO had a duty to inquire about what use rights applied to the software and the failure to do so imputed knowledge of the licensing terms on the Army. Pointing to the longstanding policy embodied in the FAR that that the government should accept commercial computer license terms that are customarily provided to other purchasers, the Board held that “the government can be bound by the terms of a commercial software license it has neither negotiated nor seen prior to the receipt of the software, so long as the terms are consistent with those customarily provided by the vendor to other purchasers and do not otherwise violate federal law.”
Continue Reading Commercial License Terms May Govern Even Without Contracting Officer Knowledge
Congress v. White House – who will win the fight? As they duke it out on policies and legislation that will impact government contractors, our legal team will help you identify vulnerabilities as well as possible opportunities. We will cover a variety of topics, including:
The Contract Disputes Act, 41 U.S.C. §§ 7101-7109, sets forth certain prerequisites for the exercise of jurisdiction over claims. Among these prerequisites is a six-year statute of limitations, which is applicable to Government and contractor claims alike. With few exceptions, claims submitted more than six years after “accrual” are not valid and cognizable under the CDA.
The obvious question is, when does the clock start – i.e., when does a claim “accrue”? Although the CDA does not define the term accrual, the ASBCA and Court of Federal Claims rely on the FAR 33.201 definition, which describes accrual as “the date when all events, which fix the alleged liability of either the Government or the contractor and permit the assertion of the claim, were known or should have been known.” As you may have guessed by the phrase “known or should have known,” determining when a claim accrues can raise a number of subjective and factual questions (for example, who must know? And when “should” that person have known?). Over the past several years, there have been a number of SOL decisions attempting to clarify this standard in the context of contractor and Government claims (see previous discussions here, here, here, here, here, and here).
Continue Reading Applicable Statute of Limitations for CAS Violations Comes into Focus
Although the Government shut down on October 1, 2013, contractors must remain diligent in analyzing their protests, claims, and other litigation matters to ensure key deadlines are not missed. Importantly, while some Government offices are closed, most courts (including the Court of Federal Claims and the Federal Circuit) remain open and the Armed Services Board of Contract Appeals (“ASBCA”) and the Civilian Board of Contract Appeals (“CBCA”) will remain open for receiving filings. The Government Accountability Office (“GAO”) is closed, but has advised that any deadlines falling on a date in which the Office is closed, will be moved to the first day GAO reopens, similar to how a weekend or holiday deadline is treated under the rules. Considering there is no way of knowing exactly when GAO will reopen, contractors must be ready to have their items filed at a moment’s notice. More importantly, to ensure a timely CICA stay notice is sent by GAO, protesters will want to ensure their protests are filed as early as possible. Below are more details for each venue.
Continue Reading Government Shut Down – What Does It Mean for Protests, Claims, and Litigation?