Federal Circuit Holds COFC Erred in Entering Judgment on Claim that Was Never Presented to Contracting Officer; Tolliver Group, Inc. v. United States, Fed. Cir. 2020-234

COFC judgment for a contractor on a claim seeking reimbursement of legal fees is vacated. The Federal Circuit found that the claim on which the judgment was based differed from the claim initially submitted to the contracting officer. The initial claim sought recovery under a FAR provision. But the COFC allowed recovery under an implied breach theory that had not been presented to the contracting officer. The COFC lacked jurisdiction to enter judgment on a breach claim that had never presented to the contracting officer.

Background

Tolliver Group had a contract with the Army to write technical manuals for a mine-clearing device. A third party brought a qui tam suit against Tolliver alleging the company had violated the False Claims Act by falsely certifying compliance with the contract even though it had never received a technical data package from the Army. The government declined to intervene. Still, Tolliver successfully defended the suit. 

Tolliver submitted a claim to the Army seeking reimbursement for legal fees incurred in defending the suit. In its claim, Tolliver reasoned that as a contractor that had successfully defended a qui tam suit, it was entitled to fees as allowable under FAR 31.205-47. The Army denied the claim.

Tolliver filed suit in the Court of Federal Claims. Tolliver’s final amended complaint asserted one claim—that it was allowed to recover its fees as allowable costs under FAR 31.205-47. The COFC, however, found Tolliver was entitled to reimbursement under a different theory, namely, that by failing to provide the technical data package, the Army breached the implied warranty of satisfactory contract performance.

The government appealed to the Federal Circuit. The government argued the COFC had lacked jurisdiction to enter judgment on the implied warrant theory, because that claim had never been presented to the contracting officer.

Holding

A claim presented to the COFC must be the same claim as the one presented to the contracting officer. Here, the initial claim sought reimbursement as an allowable cost under FAR 31.205-47. Indeed, in its claim, Tolliver only sought 80% of its legal fees allowed by FAR 31.205-47, not the total amount that would have been allowed under a non-FAR claim. 

But the COFCs’ decision was premised on an implied breach theory that was never presented to the contracting officer. The implied breach claim had materially different elements than the FAR claim submitted to the contracting officer. Thus, the claim presented to the contracting officer and the claim decided by the court were not the same. The COFC lacked jurisdiction to enter judgment on the implied warranty theory.

Tolliver is represented by Walter Brad English and Emily J. Chancey of Maynard Cooper & Gale as well as Michael W. Rich of Forman LLP. The government is represented by Ashley Akers, Brian M. Boynton, Martin F. Hockey, Jr., and Tara K. Hogan of the Department of Justice.