ASBCA examined whether a contractor's pre-termination claims could proceed despite a default termination. The agency argued that the claims were extinguished by the termination under principles of collateral estoppel and res judicata. However, ASBCA found that the validity of the termination had not been litigated. The contractor could still seek recovery for pre-termination claims caused by alleged impermissible government actions.
Appeals of Nauset Construction Corporation, ASBCA Nos. 61673, 61674, 61675
- Background - The contractor submitted claims for monetary adjustments and time extensions due to alleged delays attributable to the agency. Following the contractor's default termination, the agency moved to dismiss the contractor's claims, arguing they were tied to the termination. The contractor appealed to the ASBCA, which previously dismissed part of the appeal for timeliness but retained jurisdiction over the remaining claims.
- Validity of Termination - The agency contended that since the default termination was valid, the contractor’s claims could not stand. ASBCA found that while the termination was final, it did not inherently bar all pre-termination claims. The Board highlighted that claims relating to government-caused delays and impossible specifications could still be pursued despite the termination.
- Collateral Estoppel and Res Judicata - The agency further argued that the contractor was barred from bringing its remaining claims due to collateral estoppel and res judicata. ASBCA ruled these doctrines did not apply since the validity of the termination was not actually litigated in earlier proceedings. Thus, the contractor had not been allowed to challenge the termination's basis. The claims were allowed to move forward.
John J. McNamara and Elise M. Kuehn of Lane McNamara LLP represent the contractor. The government is represented by Dana J. Chase, MAJ Danielle C. Naser, and MAJ Joshua A. Reyes of the Department of the Army.