Suit alleging that the government breached a contract is dismissed. The court had granted the government summary judgment on the contractor’s claims and then ordered the contractor to show cause as to why its complaint should not be dismissed. The contractor responded to the show cause order with three new legal theories. The court found that the new theories lacked merit. What’s more, the theories had never been presented to the contracting officer, so the court lacked jurisdiction to consider them. Having failed to show cause, the court dismissed the contractor’s suit.
HCIC Enterprises had a contract with the Federal Bureau of Prisons to repair roofs at a correctional facility. HCIC filed suit with the Court of Federal Claims, alleging that the Bureau breached the contract by denying HCIC access to the worksite. HCIC moved for summary judgment on its claim, and the government filed a cross motion. The court denied HCIC’s motion and granted the government’s.
HCIC moved to amend its complaint. The court denied the motion, finding that it would be moot. The court then ordered HCIC to show cause as to why its suit should not be dismissed.
HCIC filed a response the court’s show cause order asserting three new theories of recovery: (1) that the government controlled the shedule so delays in performance were beyond HCIC’s control, (2) a differing site condition, and (3) a constructive change.
The court noted at the outset that HCIC’s response failed to respond to the court’s show cause order. The order required HCIC to show cause as to why its suit should not dismissed, sua sponte, for failure to state a claim. The court had not asked for new legal theories.
Moreover, the court reasoned that even if it were to consider HCIC’s new legal theories, they would not survive a motion to dismiss. The court had never held that the government “controlled the schedule” and could not even follow what HCIC was arguing with that theory. Additionally, HCIC had never made a factual allegation that would support differing site conditions claim. As to the constructive change theory, the court noted the claim simply regurgitated boilerplate legal propositions without supporting facts. Indeed, the court reasoned, HCIC had not even presented these theories to the contracting officer, so the court lacked jurisdiction to consider them.
The court dismissed HCIC’s suit with prejudice.
HCIC is represented by Frank V. Reilly. The government is represented Robert C. Bigler, Steven J. Gillingham, Robert E. Kirschman, Jr., and Joseph H. Hunt of the Department of Justice.
