The contractor said it had been coerced into signing a release by threats of a default termination. The board said this was not duress. Applying economic pressure or threatening financial loss is just hardball, not duress.
Appeals of Sand Point Services, LLC, ASBCA Nos. 61819, 61820
- Change Claim – The contractor claimed the government changed the contract by directing wasteful work on a punch list. But the board found the agency had not directed wasteful work. Rather, the contractor had agreed to do the work as part of a contract modification. Thus, the punch list was agreed to contract work, not a change.
- Duress – The contractor sought to recover for a differing site condition. The government countered the claim was barred by a release in a contract modification. The contractor argued the release was void due to duress. The contractor said it only signed the release because the agency threatened to terminate for default and disqualify the contractor from future contracts. The board said this was not duress. Duress must involve a wrongful act that is illegal or a breach of the contract. Applying economic pressure or threatening pecuniary loss, which the government did here, is not duress.
The contractor is represented by Traeger Machetanz of Davis Wright Tremaine, Eric S. Lammer of Reese Broome, and by Neil S. Lowenstein and Anthony J. Mazzeo of Vandeventer Black LLP. The government is represented by Scott W. Barber, David S. Schuman, and Paul H. Kim of NASA.
--Case summary by Craig LaChance, Senior Editor