Tuesday, April 13, 2021

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Contractor Cannot Claim Non-Performance Excusable After Providing Repeated Performance Assurances; CBCA 4241, Appeal of...

Appeal of the agency’s termination of a contract for cause is denied the where contractor failed to provide services required by the contract, despite its repeated assurances to the agency that it could perform, and failed to provide any evidence to show that its non-performance was excused by problems with a third-party. Ucensys Research Corp. […]
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Contractor Can Recover Only Costs for Test Items Produced Prior to Termination; ASBCA No....

Appeal of a claim for termination costs is denied in part where the (1) contract was terminated after the contractor delivered “first article” test units, and (2) the contract contained a “First Article Approval” clause that limited the contractor’s recovery to the cost of those test units in the event the contract was terminated before […]
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Complaint Alleging Misleading Discussions and Negotiations Not a Bid Protest, Board Says; ASBCA No....

The government’s motion to dismiss multiple counts of the appellant’s claims is denied, where the appellant’s claim of constructive change was based on the...

Appellant Knew Suitable Materials Were Unavailable from Government’s Source, Because Source was Its Own...

Appeal of the agency’s denial of a portion of a request for equitable adjustment is sustained in part, where the appellant reasonably relied on a government-provided list of material prices as the basis for its cost estimate and where the contract stated the contractor would be compensated if the actual prices exceeded 10 percent of […]
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Appellant Offered No Excuse for Failing to Comply with Specifications in Own Quotation; ASBCA...

Appeal of the agency’s decision to terminate a contract for cause is denied, where the appellant failed to deliver goods that met the contract specifications, and failed to rebut the agency’s conclusions, offer a reason for its noncompliance, or take advantage of the opportunity to correct the issues with its goods. The appellant argued it […]
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Government Cannot Rely on Hearsay to Show that Contractor Failed to Meet Specifications; ASBCA...

Appeals of the agency’s denial of claims seeking payment for work outside the scope of the construction contract are mostly granted, where the contract did not call for certain work directed by the agency and where the agency took beneficial occupancy of the facility well before the date it claimed when it levied liquidated damages. […]
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Tecom Correct Standard for Determining Allowability of Retaliation Litigation Costs; CAFC 2018-2055, Bechtel National...

Appeal of the COFC’s decision denying a claim seeking reimbursement of the contractor’s costs defending itself from a sexual harassment and retaliation lawsuit is denied, where the contract expressly barred such discrimination and where neither the costs related to an adverse judgment or settlement were allowable. The court held that the standard established in Geren […]
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Appellant Ignored CO’s Suggestion to Convert Invoices to Certified Claim; ASBCA No. 61234, Appeal...

Appeal of the agency’s refusal to pay invoices seeking additional compensation under a contract for leased armored vehicles is dismissed, where the appellant asked the agency to consider the invoices an REA but never converted the request into a certified claim seeking a final decision, despite given an opening by the CO to do so. […]
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Contractor’s Execution of a Promissory Note to Settle Government’s Claim Did Not Moot Appeal...

The Armed Services Board of Contract Appeals held that a contractor did not moot its appeal of a government claim by executing a promissory note to pay the claim. Nevertheless, the contractor’s appeal of the government’s claim to recover indirect costs is denied where the contractor and the government entered a valid bilateral agreement to […]
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Federal Circuit Clarifies When Affirmative Defenses Must Be Submitted as Claims, and When Interest...

On July 9, 2019, the Federal Circuit issued a decision in Army v. KBR, which although nonprecedential, further clarifies when an affirmative defense constitutes a CDA claim that – for jurisdictional purposes – requires a prior Contracting Officer’s Final Decision. As background, the Army withheld $44M in allegedly unallowable security costs from KBR’s invoices. KBR submitted […]
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