ASBCA Dismissed Claims for Lack of Jurisdiction. Why Was the Contractor Precluded from Reasserting those Claims in Subsequent COFC Action?

The ASBCA dismissed the contractor’s claims because they hadn’t been submitted to the contracting officer. Thereafter, the contractor submitted the claims and filed suit in the COFC. The court, however, found the claims were now barred by claim preclusion.

ECC CENTCOM Constructors, LLC v. United States, COFC No. 21-1169

• ASBCA Litigation – The contractor appealed a default termination. As part of the appeal, the contractor also sought time extensions and damages for excusable delay. The board denied the termination challenge. Additionally, the board found it lacked jurisdiction over the delay claims because they hadn’t been submitted to the contracting officer.
• COFC Suit – Two years after the ASBCA decision, the contractor submitted claims for delay damages. The agency denied the claim. The contractor then filed suit with the COFC. The contractor challenged the termination and once again sought damages for delays.
• Claim Preclusion – The doctrine of claim preclusion prevents parties from raising an issue that could’ve been raised in a prior action that proceeded to judgment on the merits. The contractor argued claim preclusion didn’t apply to the delay claims because those claims were never adjudicated on the merits; rather, the ASBCA had dismissed those claims for lack of jurisdiction.
• Contractor Could’ve Litigated Claims at ASBCA – But the COFC found the dismissal didn’t matter. Claim preclusion applies to claims that could have been asserted and litigated in the previous action. Here, the contractor’s delay claims were essentially a defense to the termination. The default termination was the subject of the ASBCA appeal. Any delay claim related to termination had to be brought to the CO before it could be asserted before the ASCBA. The contractor could’ve submitted the delay claims and litigated them before the ASBCA. It did not; it could not now litigate the claims in federal court.

The contractor is represented by Ray Dale Holmes of Cohen Seglias Pallas Greenhall & Furman. The government is represented by Bret Vallacher, Eric Laufgraben, Bondurant Eley, Brittney Welch, Erica P. Bruskin, Patricia M. McCarthy, and Brian Boynton of the Department of Justice as well as Rebecca Bockmann of the Army Corps of Engineers.

–Case summary by Craig LaChance, Senior Editor