In this fifth semiannual installment, we have packed up the notable Contract Disputes Act claims litigation decisions coming out of the Federal Circuit, Court of Federal Claims, Armed Services Board of Contract Appeals, and Civilian Board of Contract Appeals in the first half of 2022, and are ready to set out on our summer road trip. While claims litigation can at times seem endlessly complex, with blind spots and other obstacles at each turn, the road to one's recovery destination may be found through the decisional guidebook. With this guiding principle in mind, our trip begins with decisions that turned on jurisdictional and procedural matters before winding our way through merits cases that concentrate on the contractual terms. We then take a much-deserved rest before continuing, in the second half of this summary to be published next week, with pandemicrelated claims litigation, taking a detour to discuss decisions about terminations and releases, and then completing our journey with sundry practice tips. Grab your favorite tunes, and away we go.
Danger Falling Rocks'Steer Clear of Common Pitfalls in Claim Submission or Your Claims Journey Will Dead End'No matter how meritorious the claim, litigants must meet numerous procedural prerequisites before those merits ever have hope of seeing daylight. Claims litigation is remarkable not only for these procedural rules of the road but also for how often defiance of those rules is outcome determinative. The following decisions in our set are emblematic of this principle and serve as an important reminder to dot i's, cross t's, and keep your hands at the 10am and 2pm position when submitting a CDA claim.
License and Registration to File'State a Sum Certain and Certify the Claim: For any claim 'of more than $100,000,' the CDA requires that an individual 'authorized to bind the contractor with respect to the claim' sign a certification that the claim is made in good faith, the supporting data are accurate and complete to the best of the contractor's knowledge and belief, the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable, and the certifier is authorized to act on the contractor's behalf. 41 USCA ' 7103(b). In Sungwoo E&C, Co. Ltd., ASBCA 61144, 61219, 62738, 2022 WL 1601921 (April 27, 2022), the Government moved to dismiss an appeal because a 'foreign legal consultant,' and not a 'duly authorized corporate officer' of the company, signed the certification. The ASBCA denied the Government's motion and restated its rule that the certification requirement does not prohibit lawyers'with the power of attorney to bind the contractor'from signing certifications (although that may not be best practice for other reasons). The Board observed that the CDA does not require 'that the person providing the certification be an employee of the contractor,' 'have any involvement with the administration or performance of the contract,' or 'have sufficient personal knowledge of the details of the claim itself to respond to the government's discovery requests as the government argues.' Id. (citing 41 USCA ' 7103(b)(1); Federal Acquisition Regulation 33.207(c)).
A Necessary Pitstop'Presentment: The CDA also requires that all claims first be submitted to the contracting officer before being appealed to a court or board. 41 USCA ' 7103(a). Although the concept seems simple, in practice it is more complicated. For instance, contractors must present to the CO all claims involving the same operative facts at once or risk waiving the claim as happened in Avant Assessment, LLC v. U.S., 159 Fed. Cl. 632 (2022); 64 GC ' 145. As background, the contractor in this decision submitted claims associated with a termination to the CO, and then appealed the denial of those claims to ASBCA. On appeal, the contractor raised additional claims related to the termination'constructive acceptance claims and improper rejection claims'which the ASBCA dismissed for failure to present to the CO. Following the dismissal, the contractor then presented those claims to the CO and appealed the CO's subsequent denial to the COFC. The COFC held that these claims, which involved the same transactional facts as those before the ASBCA, were barred by claim preclusion: 'Avant may not submit some, but not all, of its claims to the contracting officer and proceed to piecemeal litigation of its claims through selectively creating or limiting ASBCA's or this Court's jurisdiction over its claims.' Id. at 639. Because Avant could have presented all its termination-related claims 'to the contracting officer in its initial settlement proposals, thereby bringing all of its claims at one time ' Avant gets no second bite at the apple in this Court.' Id.
Relatedly, contractors must alert the CO of each element of all theories of liability pertaining to a particular claim before proceeding with those theories on appeal. In a case discussing both this and the sum certain requirement (discussed later in this article), ECC Int'l, LLC, ASBCA 60167, 2022 WL 509701 (Jan. 25, 2022), the contractor submitted a certified claim based on breach of implied warranty of specifications and breach of the duty of good faith and fair dealing. During the appeal of a deemed denial, the Government sought dismissal of two additional theories of recovery that the Government argued the contractor added for the first time on appeal: commercial impracticability and superior knowledge...
