Just the (same) facts, ma’am: the ASBCA has jurisdiction to hear different contractor recovery theories based on the same set of operational facts.
In ECC Int’l, LLC, ASBCA No. 60167 (January 25, 2022), the Armed Services Board of Contract Appeals (“Board”) ruled that it had jurisdiction to hear a contractor’s other recovery theories that arose from the same operational facts and sought the same relief sought in his complaint. The contractor originally filed a certified claim for damages resulting from the Government’s alleged breach of a design-build contract for the construction of military facilities in Afghanistan. The claim alleged that the government breached the specification warranty and the implied duty of good faith and fair dealing by knowingly awarding a construction contract with an impossible deadline. After the government dismissed the claim, the contractor appealed to the Commission and raised two additional theories of recovery in its complaint: breach of contract by failing to disclose superior knowledge; and commercial impracticality.
More than four years after a hearing on the merits was held, the Government decided to dismiss the appeal entirely, saying that the four alternative contractor theories of relief were each supported by different sets of compelling facts and therefore constituted four separate requests. As separate claims, according to the Government, each had to independently satisfy the requirements of the Contract Disputes Act (“CDA”), namely presentation to the procurement officer and certain separate sums.
The Board largely rejected the government’s arguments, holding that it had jurisdiction to hear three of the contractor’s four theories of relief: allegations of breach of the estimate warranty; breach of the implied duty of good faith and loyalty; and the failure to disclose superior knowledge, because any “[arose] based on the same operational facts, claiming essentially the same recovery and simply asserting different legal theories for this recovery. Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003). The Board reiterated that within these limits, the CDA allows contractors to assert new theories of relief on appeal without having to reapply to the contracting officer. The Board noted that it expects parties to add factual details learned during the formal discovery process, and these new factual details do not affect its jurisdiction. However, the Board rejected the contractor’s argument that he was entitled to relief based on a theory of commercial impossibility, finding that essential evidence under this theory had never been presented to the panel. contracting officer for decision.
The Commission’s decision, coupled with the recent Federal Circuit decision in Tolliver Group, Inc. v. United States20 F.4th 771 (Fed. Cir. 2021) (reported by us here and here) remind contractors to invest in thorough and thoughtful claims assessments to mitigate potential procedural issues later in litigation. This case is also another example of the occasional tension between the law’s unique procedural requirements for contract disputes and the law’s purpose of providing for the fair and effective resolution of disputes.