The contractor said the government breached by not informing the contractor of site closures. The government said the closures were public acts protected by the Sovereign Acts Doctrine. The ASBCA didn't bite. The closures may have been a public act, but the duty to notify the contractor of the closures was a contract-specific obligation.
Appeal of Central Environmental, Inc., ASBCA No. 62628
- Claim – The contractor received a task order to demolish old weapons targets in a missile range. But the government was still using the range. During performance, the government blocked the contractor’s access to the site because of missile testing. The contractor submitted a breach claim alleging the government never informed the contractor that its access would be restricted. The contractor sought delay damages. The government denied the claim. The contractor appealed.
- Fixed Price Contract – The government argued the task order had a fixed price, so the contractor bore the risk of increased costs. The board rejected this argument. A fixed-price contract prohibits a price adjustment based on the contractor’s experience. But it does not excuse the government from performing its contractual duties. Here, the contract stated the government would inform the contractor of site limitations. It had a duty to inform the contractor of the missile tests.
- Information Available from Other Sources – The government reasoned it was excused from providing information on missile testing because the information was available on a government website. The board, however, reasoned the government was confusing a garden-variety breach case with a superior knowledge case. The availability of information elsewhere may defeat a claim that the government possessed superior knowledge. But here, the contract contained an express requirement that the government keep the contractor informed of missile testing. Moreover, the board found the website did not provide sufficient notice.
- Sovereign Acts - The Sovereign Acts doctrine shields the government from liability for its public acts. The government argued its closing of the site was a protected sovereign act. But the contractor was not complaining about the range closures themselves; its complaint was the government had not notified it about the closures. Thus, the government had not performed a public act. Instead, it had failed to act in accordance with a contract-specific duty.
The contractor is represented by Sarah C. Billstrom of Davis Wright Tremaine, LLP. The government is represented by Michael P. Goodman, Christopher C. Weisenberg, and Margaret P. Simmons of the Army Corps of Engineers.
--Case summary by Craig LaChance, Senior Editor