The contractor appealed a government claim for liquidated damages. As part of the appeal the contractor also appeared to assert a claim for delay. The ASBCA found it lacked jurisdiction over the contractor’s claim because it was never submitted to the agency.
Appeals of Shoreline Foundation, Inc., ASBCA Nos. 62876, 63616
- Government Claim – The agency issued a final decision, finding contractor delay and assessing liquidated damages. The contractor appealed the decision. As part of the appeal, the contractor contended a previously filed bid protest had delayed its work. The contractor argued the agency improperly denied an equitable adjustment for the bid protest delay.
- No Jurisdiction Over Bid Protest Delay Claim – The board found it lacked jurisdiction over the contractor’s bid protest argument. The board lacks jurisdiction over a claim that was not first submitted to the agency. The claimant had requested an adjustment for the bid protest delay, but it never submitted a formal claim for the delay. The contractor could not now piggyback that delay claim in its appeal of liquidated damages.
- Actual Knowledge – The contractor contended its appeal should be allowed because the agency had actual knowledge of the claim from the previous request for an adjustment. The board rejected this argument. Regardless of actual knowledge, nothing in the CDA excuses a contractor from complying with the claim submission requirements.
- Affirmative Defense – The contractor alleged the bid protest delay argument should be allowed because it was an affirmative defense to the agency’s delay claim. The board noted affirmative defenses do not need to be submitted to the contracting officer. But to the extent an affirmative defense seeks to change the terms of a contract—like an equitable adjustment—the defense must be submitted to the agency.
- Other Claim – The contractor attempted to argue the bid protest delay was part of another claim, which it had submitted to the agency. The board didn’t accept this. The bid protest delay theory was a different claim with facts that were distinct from the contractor’s other pending claim.
The contractor is represented by Robert G. Barbour and Matthew D. Baker of Watt, Tieder, Hoffar & Fitzgerald, LLP. The government is represented by Michael P. Goodman, Amber R. Jackson, Bruce E. Groover, Susan E. Symanski, and Kristin M. Bigham of the Army Corps of Engineers.
–Case summary by Craig LaChance, Senior Editor
