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Recent Decisions

• United States Supreme Court
• Court of Appeals for the Federal Circuit
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Court of Appeals for the Federal Circuit

IMPRESA CONSTRUZIONI GEOM. DOMENICO GARUFI v. THE UNITED STATES, CAFC No. 2007-5009, June 27, 2008. The court reverses the COFC decision finding as untimely IMPRESA’s Application for Fees and Other Expenses Under the Equal Access to Justice Act (EAJA). “The Court of Federal Claims held that since Impresa had voluntarily requested dismissal of its appeal to the Federal Circuit, that judgment was final and not appealable as of its issue date.” Reversing, the CAFC adopts “a uniform rule for EAJA petitions in the Court of Federal Claims, whereby appeal rights from voluntary dismissals are presumed unless expressly disclaimed or specifically prohibited.” Judge Rader dissents stating “In this case, Impresa moved without opposition to voluntarily dismiss its appeal. Our court issued the mandateÑby all measures a final judgment because it covered the entire case and all issues. The grant of the voluntary dismissal ended this litigation with a judgment that is ‘final and not appealable.’”

GENERAL INJECTABLES & VACCINES, INC., Appellant, v. Robert M. Gates, SECRETARY OF DEFENSE, CAFC No. 2007-1119, June 03, 2008. Petition for rehearing. The court denies the request for a rehearing of its March 19, 2008 decision. Appellant contends contends that the “panel’s interpretation of the ‘excusable delays’ provision at issue in this case, FAR 52.212-4(f), conflicts with several Court of Claims decisions” The court supplements it decision to discuss this issue, but concludes “GIV bore the risk of not being able to perform unless it could show that the reason for its failure to perform fell within the causes set forth in the ‘excusable delay’ clause. It could not shift that risk to the government simply by subcontracting production of the vaccine to a third party.”

1-10 INDUSTRY ASSOCIATES, LLC v. THE UNITED STATES, CAFC No. 2007-5124, May 21, 2008. US Postal Service contract, Rule 11 sanctions of a government attorney. The court reverses tne COFC judge and remands the case to erase the sanctions for lack of candor against a government attorney.The court reverses on two issues. First the court found that the attorney had no notice that Rule 11 sanctions were even at issue when the COFC judge issued his sanctions order that included an issue from an earlier case. Secondly, the court found no breach of the duty of candor by the attorney relating to the government’s knowledge of the facts of government counterclaim.

HUNTLEIGH USA CORPORATION v. THE UNITED STATES, CAFC No. 2007-5118, May 15 , 2008. Huntleigh appeals the COFC decision finding that there was no taking of Huntleigh’s interest in security screening contracts and the rejection of the argument that the Transportation Security Administration(TSA) was liable for compensation for assuming Huntleogh’s contracts under the provisions of the Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001). [See Pub. L. 107Ð71, title I, Sect. 101(g),] The CAFC affirms, agreeing that there was no taking and that TSA never assumed the security screening contracts between Huntleigh and the airlines.

PHILLIPS/MAY CORPORATION v. THE UNITED STATES, CAFC No. 2007-5139, April 23, 2008. The court affirms the COFC decision which found that the claim by plaintiff was barred by res judicata. COFC Judge George Miller had held “Because plaintiff’s claims before this Court are based upon the same transactional facts as its nine appeals to the ASBCA, eight of which were decided on the merits, plaintiff is barred from litigating them in this action by the claim preclusion aspect of res judicata.” Good discussion here by Judge Dyk of claim preclusion and the legislative history of the CDA.

INTERNATIONAL TECHNOLOGY CORPORATION v. Donald C. Winter, SECRETARY OF THE NAVY, CAFC No. 2007-1276, April 18, 2008. Appeal from an ASBCA decision which denied a claim for an equitable adjustment for costs incurred primarily by a subcontractor. The ASBCA denied the appeal based on the limitation of costs clause in ITC’s cost-plus-fixed-fee prime contract. On appeal to Federal Circuit ITC argues that it has a valid pass-thorough claim based on the government’s misrepresentation of the site conditions. The CAFC rejects the argument finding that even if the limitation of cost clause issue was in favor of ITC that it fails on the first two prongs of the differing site conditions claim. Namely, 1) “the contractor must prove that a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site conditions.” and 2) “the contractor must prove that the actual site conditions were not reasonably foreseeable to the contractor, with the information available to the particular contractor outside the contract documents, i.e., that the contractor ‘reasonably relied’ on the representations.” In a footnote the court indicates that it is skeptical that a breach requires a showing of government culpability as the ASBCA so noted.

RICK’S MUSHROOM SERVICE, INC. THE UNITED STATES, CAFC No. 2007-5137, April 02, 2008. Court affirms the dismissal by the COFC of a claim on a cost-sharing agreement with the Dept. of Agriculture. The court agrees that the cost-sharing agreement is not covered by the CDA and that the negligence claim soundz in tort for which the COFC does not have jurisdiction.

GENERAL INJECTABLES & VACCINES, INC. v. Robert M. Gates, SECRETARY OF DEFENSE, CAFC No. 2007-1119, March 19, 2008. Defense Supply Center contract. Court affirms the ASBCA decision upholding the default termination of a contract to supply flu vaccine. Appellant (GIV) is wholesale distributor of pharmaceuticals and supplies. Its supplier, Chiron Vaccines, could not deliver because the vaccine was contaminated. The court rejects the argument that “FAR 52.212-4(f) should be interpreted to avoid the longstanding common law rule that contractors generally are liable for the unexcused actions of their subcontractors.”

FIRST FEDERAL LINCOLN BANK, Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant, CAFC Nos. 2007-5044, -5048, March 05, 2008. Winstar case. The court reverses the damages award and affirms liability determination of the 2006 COFC decision. The decision concludes “The judgment of the Court of Federal Claims awarding damages is reversed because First Federal was not entitled to recover damages based on the market value of its lost deposits as of the date of trial, and neither claimed nor introduced evidence to support damages based on the value of the lost deposits at the time they were lost. With respect to First Federal’s cross-appeal, the challenged liability judgment of the Court of Federal Claims, concluding that no Winstar contract was formed with respect to the Norfolk or Tri-Federal mergers, is not clearly erroneous and is affirmed.” Judge Mayer dissents reversal of the Court of Federal Claims’ damages award.

MOLA DEVELOPMENT CORPORATION v. THE UNITED STATES, CAFC No. 2007-5058, 5080, February 25, 2008. Winstar case. CAFC affirms the COFC decision finding that there was no contract with plaintiff and that the statute of limitations did not bar the suit. Judge Newman dissents on the issue of no contract.

RENDA MARINE, INC. v. THE UNITED STATES, CAFC No. 2006-5127, December 11, 2007. The court affirms Judge Hewitt’s COFC decision. While Renda was litigating a differing site condition claim in the COFC, the CO issued a decision, which included a recitation of appeal rights, asserting six separate government claims against Renda. Renda did not appeal that decision, but instead some 19 months later sought to amend its complaint to challenge the validity of the CO’s decision. The COFC denied Renda’s motion as untimely. Here the CAFC rejects the argument by Renda that under Sharman Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993)), that the CO lacked authority to issue the decision. Finding that position misplaced, the court notes as a critical point that in Sharman “the government’s claim and the underlying contracting officerÕs decision were properly before the Claims Court and this court because the government had put them in issue by asserting its counterclaim.” Here, the court points out “Renda did not timely appeal the November 26, 2002 final decision, and the government did not put the decision in issue by filing a counterclaim based upon the decision.” Noting that the “Court of Federal Claims simply applied the clear language of the CDA to the undisputed facts of the case. ... The Court of Federal Claims neither erred as a matter of law nor acted arbitrarily or capriciously. In short, it did not abuse its discretion.”

Donald C. Winter, SECRETARY OF THE NAVY, Appellant, v. BATH IRON WORKS CORPORATION, Appellee, CAFC Nos. 2006-1578, -1589, October 04, 2007. Navy destroyer construction contract. The ASBCA had found that corrosion in a fuel oil system provided by Bath was an fortuitous or casualty loss under the terms of the Insurance clause in the contract and had allowed an equitable adjustment for the correction. The Court reverses finding that the post-hydrostatic flush, which may have given rise to the corrosion, was not a defect in the vessel covered by the insurance clause. The court vacates the ASBCA decision and remands to the ASBCA to determine if the improperly performed flush was the cause of the corrosion.

CITY LINE JOINT VENTURE v. THE UNITED STATES, CAFC No. 2006-5102, September 27, 2007. HUD insured loan case under the Low Income Housing Preservation and Resident Homeownership Act of 1990(LIHPRHA). The court reverses the COFC decision concluding “that the Court of Federal Claims’ grant of summary judgment to the government on the breach of contract claim was improper because its reliance on the sovereign acts doctrine as a basis for excusing the government’s breach is misplaced.” Relying on its analysis in the Cienega Gardens v. United States line of cases the court notes that it had determined “that the statutes’ effects on the low-income housing project owners contracts was not merely a consequential loss resulting from the lawful exercise of the government’s police power, but rather ’legislation aimed at the contract rights themselves in order to nullify them.‘”

Conocophillips, et al. v. U.S. and La Gloria Oil and Gas Company v. U.S., CAFC Nos. 2007-5004 and 2007-5010, September 21, 2007. DESC fuel contracts. Plaintiffs challenge the application of the economic price adjustment clause in the plaintiffs’ contracts to supply fuel to the government. The court affirms the COFC decisions (see Conoco and La Gloria) that the economic price adjustment clause was used properly and rejects the arguments of mistake and reformation. The court does however, reverse and remand the holding in the La Gloria case regarding minority preference and small business set-aside claims. The court finds that the claims are “sufficiently related to the contract to bring the claims within the Contract Disputes Act and the jurisdiction of the Court of Federal Claims.”

ACE CONSTRUCTORS, INC. v. THE UNITED STATES, CAFC No. 2006-5093, September 19, 2007. Corps of Engineers contract. The court affirms the COFC decision in favor of the contractor. The court rejects the government's argument that the COFC did not have jurisdiction as the claim was not the same as presented to the CO. Citing Scott Timber Co. v. United States, 333 F.3d 1358 (Fed. Cir. 2003), the court states “that the same claim must be presented to the Court of Federal Claims as was decided by the contracting officer, but that this standard ‘does not require rigid adherence to the exact language or structure of the original administrative CDA claim [when] they arise from the same operative facts, claim essentially the same relief, and merely assert differing legal theories for that recovery.’ Id. at 1365. The Court of Federal Claims found, and we agree, that the claims before the contracting officer and the court did not differ significantly.”

THE LONG ISLAND SAVINGS BANK, FSB, and THE LONG ISLAND SAVINGS BANK OF CENTEREACH FSB v. THE UNITED STATES, CAFC No. 2006-5029, September 13, 2007. Reissued as an en banc decision. Winstar case. See earlier CAFC decision and the COFC 2005 decision and the COFC 2002 decision. The court upholds its earlier reversal of the COFC and holds that the “contract is tainted from its inception by fraud and thus void ab initio, and that the claims against the government are excused by prior material breach ... ”

NATIONAL AMERICAN INSURANCE COMPANY v. THE UNITED STATES, CAFC No. 2007-5016, August 23, 2007. The court affirms the COFC decision that a payment bond surety was equitably subrogated to the rights of the contractor whose debt it discharged. Good discussion of the Supreme Court and other decisions on the equitable subrogation rights of sureties.

AVTEL SERVICES, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and KING AEROSPACE, INC., Defendant-Appellee, CAFC No. 06-5060, August 21, 2007. While Avtel’s bid protest was pending at the COFC, Avtel entered into an Assignment for the Benefit of Creditors under California law and suspended its activities, in accordance with California law. Avtel appeals from the COFC decision. In a per curiam decision the court dismisses the appeal for want of jurisdiction based on Avtel’s bankruptcy status. Judge Newman dissents stating that “Avtel’s insolvency did not extinguish its existing claims upon the Assignment for the Benefit of Creditors under California law.” She concludes-“Today’s ruling of mootness has potentially broad consequences for government contracting, for it holds that if the losing bidder is pressed into insolvency while its protest is pending, the right to protest a wrongful award disappears. This is not correct law, and it subverts legislative policy. I respectfully dissent.”

Donald C. Winter, SECRETARY OF THE NAVY, Appellant, v. CATH-DR/BALTI JOINT VENTURE, CAFC No. 2006-1359, August 17, 2007. Navy contract. The court reverses the portion of the ASBCA decision which found that a Resident Officer in Charge of Contracts (ROICC), who was also the Project Manager (PM) during the performance period, had the authority to commit the government to compensable contract changes. Judge Moore's opinion notes “the ROICC could not have had the implicit authority to authorize contract modifications because the contract language and the government regulation it incorporates by reference explicitly state that only the contracting officer had the authority to modify the contract.” The court remands several claims to the ASBCA to determine if a ratification occurred. Judge Prost dissents on the ratiifcation remand.

GRUMMAN AEROSPACE CORPORATION v. Michael W. Wynne, SECRETARY OF THE AIR FORCE, CAFC No. 2006-1482, August 17, 2007. The court affirms the ASBCA decision to deny GrummanÕs superior knowledge claim and Grumman’s use of the jury verdict method to calculate damages. Judge Newman dissents.

J.G.B. ENTERPRISES, INC. v. THE UNITED STATES, CAFC No. 2005-5065, August 02, 2007. CAFC affirms the COFC which held “that the government cannot setoff payments owed to JGB, a subcontractor and third party beneficiary, with debts owed by prime contractor CCP on other, unrelated contracts that do not involve JGB.” See COFC decision. The decision by Chief Judge Michel rejects the government’s argument that the claim by JGB is a derivative claim to the government’s right to set-off a debt owed by the prime. The court notes “In other words, the government here must have a claim against JGB, not CCP, in order to setoff its payment due JGB because JGB’s claim is a claim for the benefits due it directly and not a derivative claim for money owed to CCP.”

BANK OF AMERICA, FSB, Plaintiff-Appellant, v. ROY DOUMANI and BEVERLY W. THRALL (successor to the claims of Larry B. Thrall), Plaintiffs-Appellants, v. UNITED STATES, CAFC Nos. 2006-5088, -5089, -5090, July 26, 2007. The CAFC affirms the COFC on several issues in this Winstar case. Judge Mayer dissents on the statute of limitations issue. He would find the action, filed on September 29, 1995, barred as filed more than six years after the enactment of the FIRREA, August 9, 1989.

INTERNATIONAL DATA PRODUCTS CORP. v, THE UNITED STATES, CAFC Nos. 2006-5083, -5094, June 27, 2007. See earlier COFC decisions. “The Air Force terminated for convenience its Desktop V contract with International Data Products Corporation (IDP) because IDP lost its status as a small entity favored under section 8(a) of the Small Business Act. Small Business Act, Pub. L. No. 85-536, 72 Stat. 384 ....[See 15 U.S.C. § 637(a)(21)] The Air Force, however, required IDP to continue to perform warranty and upgrade services under the contract. IDP sued for the costs of performing those services. The Court of Federal Claims determined that the termination for convenience also terminated IDP’s obligation to continue to provide warranty and upgrade services. Int’l Data Prods. Corp. v. United States, 70 Fed. Cl. 387, 394 (2006) (citing Int’l Data Prods. Corp. v. United States, 64 Fed. Cl. 642, 650-51 (2005)).” The CAFC, in an opinion Judge Rader, holds that 15 U.S.C. § 637(a)(21)(A) did not terminate IDP’s warranty and upgrade services obligations, and therefore reverses the COFC holding that the termination for convenience terminated IDP’s warranty and upgrade obligations.

BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007. Pre-award bid protest. Park Service contract for ferry service and concessions at Alcatraz Island. In a case of first impression the CAFC holds “that a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.” The opinion by Judge Gajarsa notes that recognition of this waiver rule further the statutory mandate of the provision of 28 USC 14919b)(3) which provides that “the courts shall give due regard to the ... and the need for expeditious resolution of the action.”

CHAPMAN LAW FIRM CO., Plaintiff-Appellant, v. GREENLEAF CONSTRUCTION CO., INC., Plaintiff-Appellee, v. UNITED STATES, Defendant-Cross Appellant, and MICHAELSON, CONNOR & BOUL, INC., Defendant-Appellee., CAFC Nos. 2006-5096, -5117, June 11, 2007. HUD bid protest. The court affirms “the Court of Federal Claims’ denial of the Government’s motion to dismiss in light of its first proposed corrective action; however, because the Court of Federal Claims improperly entered judgment for plaintiffs after the Government revised its proposed corrective action, we reverse and remand for the Court of Federal Claims to dismiss the complaint.r” The court notes that “the availability of EAJA fees is not an appropriate consideration for a court when determining how to dispose of a case.”

RICHLIN SECURITY SERVICE COMPANY, v. Michael Chertoff, SECRETARY OF HOMELAND SECURITY, CAFC No. 06-1055, April 03, 2007. Petition for rehearing. The court denies the petition for rehearing of the earlier decision holding that “under the Equal Access to Justice Act, 5 U.S.C. § 504 (2000) (“EAJA”), paralegal services may only be reimbursed at the cost to the attorney and not at the market rate.” The court rejects the argument that its decision is in conflict with other circuits.

BILL HUBBARD (individually and doing business as Bill Hubbard Associates) v. THE UNITED STATES, CAFC Nos. 2003-5076, -5080, 2005-5167, March 20, 2007. EAJA case. Court affirms the $400 in damages awarded by Judge Smith of the COFC, in a case where $627,000 in damages were sought, but vacates the award by the COFC of attorneys fees of $110,000. The court adopts the case law for fee shifting provisions under the Civil Rights Act declaring that “‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained’.” The court also notes in its remand that “Although the award of attorney’s fees lies within the discretion of the trial court, that discretion does not authorize the court to award prejudgment interest against the United States. In recalculating the attorney fees on remand, the trial court should take this principle into account.”

SUBURBAN MORTGAGE ASSOCIATES, INC. v. THE UNITED STATES, CAFC No. 06-1207, March 12, 2007. The government takes an interlocutory appeal from a decision of the United States District Court for the District of Columbia which had denied the government’s motion to dismiss or transfer to the COFC an action arising from HUD mortgage insurance. The court reverses and remands “with instructions to either dismiss Count I of the complaint or transfer it to the Court of Federal Claims.” Good discussion of the interplay of the Tucker Act and the Administrative Procedure Act and the Supreme Court’s decision in Bowen v. Massachusetts, 487 U.S. 879 (1988).

RYSTE & RICAS, INC. v. Francis J. Harvey, SECRETARY OF THE ARMY, CAFC No. 06-1196, February 16, 2007. Army contract. Appellant filed its termination settlement proposal about 13 months after receipt of the ASBCA decision converting a termination for default into one for termination for convenience. The Board subsequently granted the government’s motion to dismiss on the basis that the settlement proposal was untimely filed. The CAFC now affirms rejecting appellant’s that the effective date of the termination was the date following the expiration of the period for seeking an appeal of the ASBCA decision. The Court notes “The clear language of FAR § 52.249-2(e) required RRI to file the termination settlement proposal within one year of the effective date of termination, expressly defined in FAR § 2.101 as the date that RRI received the notice of termination. Here, RRI received the Board’s decision converting the default termination to a termination for convenience on June 8, 2002, but RRI failed to submit its termination settlement proposal within one year of this June 8, 2002 effective date.”

NORTH STAR STEEL CO. v. THE UNITED STATES, CAFC Nos. 2006-5054, -5057, February 13, 2007. Court reverses the COFC decision in this contract case where the plaintiff is a third party beneficiary to a contract with the Department of Energy’s Western Area Power Administration (“WAPA”). WAPA markets and delivers cost-based hydroelectric power and related services. Because the government was selling services, not acquiring services, the Court reverses the COFC decision that jurisdiction was under the CDA. The Court also reverses the COFC that WAPA breached the contract, finding that under the circumstances there was no showing that the government did not act in good faith. Finally, the court reverses the COFC holding that there was no coercive conduct on the part of WAPA needed to support the third prong of the test for duress “(3) that such circumstances were the result of the other party’s coercive acts.”

THE LONG ISLAND SAVINGS BANK, FSB, and THE LONG ISLAND SAVINGS BANK OF CENTEREACH FSB v. THE UNITED STATES, CAFC No. 2006-5029, February 01, 2007. Winstar case. The court reverses the summary judgment and damages decision of the COFC holding that the claims against the government were forfeited by 28 USC 2514. Good discussion of fraud elements and the imputation of the intent to defraud.

MAURICE L. BIANCHI v. THE UNITED STATES, CAFC No. 00-5042, January 29, 2007. The last(?) in this long line of decisions arising from 1979-80 contracts for military clothing. The court agrees that the COFC properly found that one of Bianchi’s claim was time-barred by 28 USC 2501. Although reversing the COFC on jurisdiction of a claim of the breach of a settlement agreement, the court finds no entitlement and remands with instructions to enter judgment in favor of the government.

CITIZENS FEDERAL BANK and CSF HOLDINGS, INC. v THE UNITED STATES, CAFC No. 05-5173, January 24, 2007. Winstar case. The government challenges the damages award contending “that the breach of the agreement did not cause the injury for which the plaintiffs were awarded damages.” The court affirms. Judge radger dissents arguing that the substantial factor test was not the proper test for damages.

RICHLIN SECURITY SERVICE COMPANY v. Michael Chertoff, SECRETARY OF HOMELAND SECURITY, CAFC No. 2006-1055, December 26, 2006. The court affirms the DOT Board of Contract Appeals holding that “under the Equal Access to Justice Act, 5 U.S.C. § 504 (2000) (“EAJA”), paralegal services may only be reimbursed at the cost to the attorney and not at the market rate.” Good discussion of the purpose of fee shifting waiver of sovereign immunity statutes. The court distinguishes the holdings under the Civil Rights Attorney’s Fees Awards Act at 42 USC 1988 and those of the EAJA. Judge Plager dissents and would instead, “reverse the Board decision, and remand for the Board to determine whether local billing practices support a fee award for the paralegal services at market rates (see the discussion of this point in Jenkins, 491 U.S. at 285-87), and what the award amount should be.”

NIGHT VISION CORP. v. THE UNITED STATES, CAFC No. 06-5048, November 22, 2006. Court affirms the COFC decision that a firm which receives Phase I and Phase II contracts under the Small Business Innovation Research (“SBIR”) has no right to receive a Phase III award. Judge Friedman holds that “[15 U.S.C.] § 638 imposes no duty on the government to award a Phase III contract to a concern that successfully completes a Phase II contract. Section 638 creates no rights for any private entities and therefore is not a ‘regulation . . . intended to define and state the rights of a class of persons.’(citations omitted). The Court of Federal Claims correctly ruled that ‘nowhere does it [§ 638] impose an obligation directly upon a procuring agency nor does it create any enforceable rights under a SBIR contract.” Th court also rejects plaintiff’s argument that it had an oral or an implied contract from the government to receive a Phase II contract as plaintiff failed to show that the Air Force officials who allegedly promised a Phase III contract had the authority to make that commitment.

GARDINER, KAMYA & ASSOCIATES, P.C. v. Alphonso Jackson, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CAFC No. 05-1524, November 08, 2006. HUD IDIQ contract for accounting services. See earlier decision remanding back to the HUDBCA. The court affirms the HUDBCA decision denying GKA’s claim for a retroactive pricing adjustment. The court however, finds that the Board’s “approach to construction of the contract language and to the doctrine of contra proferentem is misplaced.” The court holds that the language of the modification in question “is clear on its face; that there is consequently no ambiguity; and that the modification did not provide for retroactive pricing.” Discussion of contract interpretation issues and applicability of the contra proferentem doctrine.

AMERICAN CAPITAL CORPORATION and TRANSCAPITAL FINANCIAL CORPORATION, Plaintiffs-Cross Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Cross Appellant, v. UNITED STATES, CAFC Nos. 05-5150, -5152, -5159, October 30, 2006. Winstar case. Court affirms and reverses, in part, the COFC decision. In reversing the court notes that “Though Transohio is a wholly-owned subsidiary of TFC and TFC made certain promises to maintain Transohio’s capital, TFC’s rights to claim Transohio’s equity losses resulting from the government’s breach were purely as a shareholder of Transohio.” and “TFC cannot randomly disregard the corporate form to its own benefit. Transohio’s injuries that resulted in its losses and ultimate downfall are properly its own, and therefore its potential breach of contract claims against the government for those injuries must be brought in its name.” Judge Rader dissents.

BLUEBONNET SAVINGS BANK, F.S.B., CFSB CORPORATION, and STONE CAPITAL, INC., and JAMES M. FAIL, v. THE UNITED STATES, CAFC Nos. 06-5016, 5024, October 11, 2006. Winstar case. The CAFC affirms the COFC decision award of “$96,798,842 to plaintiffs as damages for the government’s breach of contract.” Judge Bryson’s opinions discusses and rejects the government’s three arguments—“(1) the trial court’s use of the jury verdict method of assessing damages, (2) the court’s finding that federal regulators would not have approved CFSB’s gratuitous assumption of Mr. Fail’s debt, and (3) the overall reasonableness of the damages award.”

TEG-PARADIGM ENVIRONMENTAL, INC. v. THE UNITED STATES, CAFC No. 06-5007, September 29, 2006. HUD asbestos abatement contract. Court affirms the COFC decision granting summary judgment to the government on two breach claims. The court rejects the argument that the COFC failed to consider two documents of extrinsic evidence of the trade practice and custom. The court notes that “neither of these documents aids in the interpretation of a term of art in the asbestos abatement field. Rather each document offers an alternate explanation of the contract’s abatement standard generally. Under Hunt Construction, it is not permissible to use these extrinsic sources to impart ambiguity into an otherwise unambiguous contract-they may only be used to interpret a term of art. [citations omitted] Given the clarity of the meaning from the language and the parties’ pre-contractual negotiations, none of the extrinsic evidence cited by TEG carries weight.” The court also disagree with appellants’ argument that its work plan was incorporated into the contract. The court states “Given that the contract expressly incorporates certain extrinsic documents, but does not incorporate the work plan, we find that the work plan is an extrinsic document that cannot be used to contradict or modify the contract under the parol evidence rule.”

PSEG NUCLEAR, L.L.C., and PUBLIC SERVICE ELECTRIC AND GAS COMPANY v. THE UNITED STATES, CAFC No. 05-5162, September 29, 2006. The Court of Appeals for the Federal Circuit reverses the COFC and holds that the Court of Federal Claims does have jurisdiction under the Tucker Act to hear Spent Nuclear Fuel breach of contract claims under the Nuclear Waste Policy Act of 1982 (“NWPA”.

INDUSTRIAL DOOR CONTRACTORS, INC. v. THE UNITED STATES, CAFC No. 06-5022, September 22, 2006. (Not citable as precedent). Court reverses the COFC and remands. Court finds that a letter sent to Industrial(IDC) by an attorney representing the Smithsonian Institution in an effort to have IDC withdraw a bid protest to the GAO “show a mutual desire to enter into a contractual agreement.” The court notes that “Because the offer was not ambiguous, the trial court erred in finding no mutuality of intent to contract on this ground.”

ZOLTEK CORPORATION v. THE UNITED STATES, CAFC Nos. 04-5100,-5012, September 21, 2006. Court denies both a petition for rehearing and a petition for rehearing en banc of the earlier decision. Judge Newman dissents stating “The court today rules that the owner of a patent that the government uses for governmental purposes cannot bring an action under the Fifth Amendment for compensation for the use of this property, and cannot prevent such unauthorized use. The panel majority holds that there is no jurisdiction in the Court of Federal Claims -- or any other court -- of a Takings claim for compensation for unauthorized use by the government of a patented invention. This ruling is contrary to decision, statute, policy, and constitutional right. I must, respectfully, dissent from the court's endorsement of this ruling.” Judge Dyk, with Judge Gajarsa concurring, writes a separate opinion concurring in the denial of the rehearings and to note that Judge Newman has misread the majority panel opinion.

UNITED PACIFIC INSURANCE COMPANY, RELIANCE INSURANCE COMPANY, and RELIANCE NATIONAL v. THE UNITED STATES, CAFC No. 06-5023, September 20, 2006. The Federal Circuit affirms the earlier decision by Judge Firestone. Plaintiff was a Miller Act surety and seeks to recover in quantum meruit the amount over and above the original contract price that it was required to pay in order to complete the project after the contractor defaulted. Plaintiff argues “that it was entitled to quantum meruit recovery because the contract at issue was illegal and therefore void ab initio. According to United Pacific, the contract was illegal because it was entered into in violation of two statutes, 10 U.S.C. § 2805 (1994) (amended 2000) and 10 U.S.C. § 2811 (1994) (amended 2000), which set forth expenditure limitations and require oversight in connection with certain military construction projects.” In an opinion written by Judge Schall affirms Judge Firestone’s opinion which held that “The plaintiff’’s causes of action to invalidate Castle’s or its own contract based on the alleged violation of the statutes fail under AT&T III [American Telephone & Telegraph Co. v. United States, 177 F.3d 1368 (Fed. Cir. 1999) (en banc).]”

CITIES OF BURBANK, GLENDALE and PASADENA, CALIFORNIA v. Samuel W. Bodman, SECRETARY OF ENERGY, CAFC No. 05-1512, August 30, 2006. Bonneville Power Administration (BPA) contracts. Cities appeal a DOEBCA decision claiming that BPA miscalculated the rates it charged them for power. Thw court affirms, finding that the Board correctly interpreted the contract clause in dispute.

MICHAEL W. WYNNE, Secretary of the Air Force, v. UNITED TECHNOLOGIES CORPORATION, CAFC No. 05-1393, August 28, 2006. Air Force TINA case. The court affirms the 2005 ASBCA decision. The Court agrees with the Board “that the Air Force did not establish that it relied upon the defective cost or pricing data to its detriment”

LASALLE TALMAN BANK, F.S.B. v. THE UNITED STATES, CAFC No. 05-5164, August 25, 2006. Winstar case. Court affirms the COFC’s decision awarding LaSalle $146.7 million in cost-of-replacement-capital damages and also affirm the court’s decision to increase the damages award to account for anticipated income tax payments at a rate of 39.5%.

LEAR SIEGLER SERVICES, INC. v. Donald H. Rumsfeld, SECRETARY OF DEFENSE, CAFC No. 06-1080, July 27, 2006. Air Force contract, Service Contract Act case. The court reverses the ASBCA and grants summary judgment on Lear Siegler’s claim for increased costs for its defined benefits plan under its collective bargaining agreement. The ASBCA had decided below that the Price Adjustment clause in the contract “does not require reimbursement of the increased costs of H&W benefits claimed because the change in cost did not result from the application of a DoL wage determination or collective bargaining.” The court disagreed, holding that “...the Price Adjustment Clause is triggered by changes in an employer’s cost of compliance with the terms of a wage determination. The fact that there has been no nominal change in the mandated benefitÑi.e., that there has been no change in the level of benefit provided by the defined-benefit planÑis simply irrelevant.”

WESLEYAN COMPANY, INC. v. Francis J. Harvey, SECRETARY OF THE ARMY, CAFC No. 05-1522, July 17, 2006. The court reverses the ASBCA, finding that the Board does have CDA jurisdiction to consider breach claims for the disclosure of proprietary information insofar as the claims apply to purchase orders. The court, however, does not find CDA jurisdiction for the claims relating to unsolicited proposals or a bailment agreement. Judge Newman dissents arguing that “The court’s decision, separating the various steps in this relatively simple procurement, can have large consequences for dispute resolution.” Judge Newman further states “ The Contract Disputes Act does not withhold from the boards of contract appeals the authority to consider the entirety of the claim. There is no basis in the Contract Disputes Act for segregating the contract-based confidentiality obligations that were incurred at the beginning and at the end of this procurement, from that in the middle.”

APPLIED COMPANIES v. Francis J. Harvey, SECRETARY OF THE ARMY, CAFC No. 05-1511, July 14, 2006. Army contract. The court affirms the ASBA which denied the bulk of Applied’s VECP claim for future savings on models not covered by Applied’s contract. The court concludes “Because the agreement between Applied and the Army provided unambiguously that Applied was not entitled to share in any future savings, the Board correctly declined to award Applied a share of future savings for additional AC models.”

KIMCO REALTY CORPORATION and CENTEREACH MALL ASSOCIATES, L.P. v. THE UNITED STATES, CAFC No. 05-5181, June 30,2006-Not Citable as a Precedent. Court affirms, in part, and vacates, in part, the 2001 COFC decision in KIMCO REALTY, et. al. Regarding the portion of the COFC decision that granted the government’s summary judgment motion, Judge Bryson notes “Because we are unable to agree with the court’s conclusion that the contract unambiguously supports that interpretation, we reverse the grant of summary judgment for the government on the CAM charge issue.”

LOCAL OKLAHOMA BANK, N.A. v. THE UNITED STATES, CAFC Nos. 04-5106, -5107, June 29, 2006. Winstar case. The court affirms the COFC decision finding that the government breached the implied covenant of good faith and fair dealing. The court states-“ the government’s suggestion that it was reserving for itself the right to alter the tax laws simply because it refused to indemnify Local does not persuade us that the absence of an express clause ensuring against changes in tax legislation should absolve the government of liability. The government’s refusal to indemnify Local did not eviscerate its implied promise to refrain from impairing performance of its contractual obligations. As we noted in Centex, ‘it would be inconsistent with the recognition of an implied covenant if we were to hold that the implied covenant of good faith and fair dealing could not be enforced in the absence of an express promise to pay damages in the event of conduct that would be contrary to the duty of good faith and fair dealing.” (citations omitted)

APTUS COMPANY v. THE UNITED STATES, CAFC No. 05-5165, June 14, 2006-Not Citable as a Precedent. Court affirms the COFC dismissal for claim preclusion and for lack of jurisdiction of a “claim alleging a violation of the Assignment of Claims Act, of 1940, 31 U.S.C. § 3727, 41 U.S.C. § 15.” Judge Rader notes “31 U.S.C. 3727 sets forth guidelines for the assignment of claims against the Government. 41 U.S.C § 15 constrains contractors with Government contracts from transferring their work to another party. There are no money-mandating requirements in either of these provisions. As this is a requirement for the Court of Federal Claims to possess jurisdiction, the trial court correctly dismissed Mr. Lin’s fifth claim under Rule 12(h)(3). That requirement was not met by Mr. Lin's claim.”

MEDLIN CONSTRUCTION GROUP, LTD. v. Francis J. Harvey, SECRETARY OF THE ARMY, CAFC No. 05-1514, June 01, 2006. Corps of Engineers contract. The court reverses the ASBCA decision, holding “that Medlin’s interpretation, unlike the government’s, gives meaning to all of the Contract provisions and is therefore the only reasonable interpretation of the Contract.”

OLD STONE CORPORATION v. THE UNITED STATES, CAFC No. 05-5059, May 25, 2006. Winstar case. The court reverses, in part, and concludes “that the $118 million amount is not recoverable under a restitution theory because the appellant elected to continue performance under the contract to the benefit of the appellant and to the detriment of the government, and is not recoverable under a reliance theory because the damages were not foreseeable as a matter of law.”

REX SERVICE CORPORATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and ASSOCIATED AIRCRAFT MANUFACTURING & SALES INC., CAFC No. 05-5142, May 08, 2006. Post-award bid protest. Court affirms the COFC decision that appellant was not an interested party. Party that chooses to not submit a bid is not an interested party. The court notes that “It is not relevant to Rex’s status that it filed a pre-award agency protest, or that it alleges department ‘illegalities’ prejudiced its ability to bid. It ‘could have [bid] for the contract award . . . and could have utilized the protest procedures available to an interested party to correct [the] deficiencies it perceived in the procurement process.’”

BLUE DOT ENERGY COMPANY, INC., Plaintiff-Appellee, v. UNITED STATES, Defendant-Appellant, and WASTE MANAGEMENT OF WASHINGTON, INC., Defendant. CAFC No. 05-5058, May 02, 2006-Not Citable as a Precedent. Air Force contract, post-award protest. The saga continues. The CAFC reverses the COFC decision by Judge Braden where she said the government “did everything possible to avoid competition.” The CAFC holds that it was reasonable for the Air Force to limit the procurement to firms holding a certificate from the Washington State Utilities and Transportation Commission for hauling solid waste . Because the awardee was the only firm with such a certificate the sole source award was proper as the awardee was the only responsible source under 10 U.S.C. § 2304(c)(1). The court further holds that the initial responsibility decision—does the firm have a certificate—is properly made by the Air Force and not subject to SBA review as stated by Judge Braden.

ZOLTEK CORPORATION v. THE UNITED STATES, CAFC Nos. 04-5100,-5102, March 31, 2006. In a 74 page opinion which includes two concurring opinions and one dissenting opinion, the CAFC reverses COFC Chief Judge Damich’s opinion which held that plaintiff may assert a claim outside of 28 U.S.C. § 1498 for a taking of its patent rights under the Fifth Amendment. The Court affirms Judge Damich’s opinion that 28 U.S.C. § 1498(c) bars this action as arising in a foreign country. The two concurring opinions by Judges Gajarsa and Dyk offer a spirited discussion of whether or not NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, is controlling. Judge Plager dissents and “would uphold the trial court’s conclusion that the taking claim states a cause of action entitling plaintiff to a full trial of the issue, and reverse the trial court’s erroneous conclusion regarding § 1498.”

MARRIOTT INTERNATIONAL RESORTS, L.P., and MARRIOTT INTERNATIONAL JBS CORPORATION v.THE UNITED STATES, CAFC No. 05-5046, February 03, 2006. The CAFC reverses the COFC and follows the DC Circuit in holding that the “deliberative process privilege” may be delegated by the agency head to a subordinate. Judge Mayer dissents. [Not a contract case.]

RICHLIN SECURITY SERVICE COMPANY v. MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY, CAFC No. 05-1085, January 31, 2006. INS contract. The Court affirms the decision of the DOTCAB holding that Richlin was not entitled to interest because “there is nothing upon which interest could accrue to appellant. Appellant did not advance its own funds to pay the Guard II wages and associated payroll taxes.” Judge Dyk reviews the cases where interest has been allowed against the government pursuant to §611 of the CDA and concludes that the “prior decisions are clear that the contractor can recover interest only on amounts it actually paid.”

JACOBS ENGINEERING GROUP, INC. v. THE UNITED STATES, CAFC No. 05-5052, January 19, 2006. Cost-sharing contract requiring government to reimburse 80 percent of the cost of performing the contract. The T/C clause required the government to pay all of the costs reimbursable under the contract. After a T/C the contractor submitted a claim for all its costs, not just 80 percent. The Court reverses the COFC decision which had found that ktor was only entitled to 80 percent. The Court distinguishes between costs which were and were not reimbursable and concludes that the “all costs reimbursable” language of the T/C clause “defines the type or kind of costs for which the contract provides reimbursement and not the amount of such costs.” Judge Friedman also notes that if there was an ambiguity it must be resolved in the favor of Jacobs as the non-drafter of the clause.

ELAINE LEONARDO v. THE UNITED STATES, CAFC No. 05-5103, January 11, 2006. In an opinion not citable as precedent, and what appears to be the last in a long line of cases, the CAFC affirms the COFC that Leonardo had not proved that a contract of bailment existed between her and the State Department. See earlier opinions in this case where appellant had alleged that “she entered into a bailment contract with the government relating to her artwork and that the government breached the contract when it negligently allowed the artwork to be destroyed.”

ROBERT CURTIS v. THE UNITED STATES, CAFC No. 05-5121, November 14, 2005. (Not citable as precedent.) Court affirms the dismissal by the COFC for failure to be represented by counsel. “Curtis could not substitute himself as a successor-in-interest as to claims of Curtis, Ltd. against the United States because the Assignment of Claims Act invalidates such transfers. 31 U.S.C. § 3727. Furthermore, Curtis’ claim is derivative in nature and therefore must be brought in the name of the corporation. The trial court’s order that Curtis either be represented by counsel as a shareholder of Curtis, Ltd., or substitute Curtis, Ltd. as plaintiff to be represented by its own counsel, was proper.”

FLEXLAB, L.L.C. v. THE UNITED STATES, CAFC No. 05-5018, September 27, 2005. CAFC affirms the COFC decision that plaintiff has not shown that it was either a third-party beneficiary of a now insolvent 8(a) contractor or a party to an implied-in-fact contract with the government. The court holds that for a party to benefit as third-party beneficiary or from an implied contract with the government that a government official with contract authority must be aware of the intended benefit to plaintiff. Here there was no such knowledge. Judge Clevenger adopts a Nash & Cibinic admonishment that plaintiff and other government subcontractors should “Never-never-never rely on other Government employees such as small business specialists to arrange these transactions.”

Commonwealth OF KENTUCKY, EDUCATION CABINET, DEPARTMENT FOR THE BLIND, v. UNITED STATES, CAFC No. 05-5010, September 21, 2005. Court affirms the dismissal for lack of jurisdiction by the COFC of a bid protest which alleged violations of the Randolph-Sheppard Act (RSA). The CAFC agrees that where RSA violations are alleged, the arbitration procedures provided by the RSA are mandatory and not permissive.

Lockheed MARTIN CORPORATION, v. Gordon R. England, SECRETARY OF THE NAVY, CAFC No. 04-1461, September 21, 2005. Lockheed appeals from a decision of the ASBCA in which the Board held that Lockheed was not entitled to recover for subcontract effort in a termination settlement. The Court affirms the Board finding that “FAR 49.202 does not allow a higher-tier contractor to recover fee for the effort of its subcontractors when the higher-tier contractor has a CPFF contract with its next-higher-tier contractor or with the government.”

SAI INDUSTRIES CORP. v. THE UNITED STATES, CAFC No. 05-5027, August 26, 2005. The Court affirms the COFC’s dismissal of an EAJA fees claim as untimely. Judge Friedman notes that that court has no reason to disagree with the COFC interpretation of a COFC rule “that under its Rule 6(a), the “day of the act . . . from which the designated period of time begins to run” is July 26, 2004, “the day on which the period for appeals expired. . . and not the day on which the judgment was no longer appealable (July 27, 2004).”

FIRST HEIGHTS BANK, FSB, PULTE DIVERSIFIED COMPANIES, INC., and PULTE HOMES, INC. v. THE UNITED STATES, CAFC Nos. 04-5021, -5022, August 17, 2005. Winstar case. CAFC affirms the COFC agreeing that the case was controlled by the holding in Centex Corp. v. United States, 395 F.3d 1283 (Fed. Cir. 2005) that the “Guarini” amendment breached the implied covenant of good faith and fair dealing

GUARDIAN MOVING AND STORAGE COMPANY, INC. v. Lt. Gen. Michael V. Hayden, DIRECTOR, NATIONAL SECURITY AGENCY, CAFC No. 05-1086, August 09,2005. National Security Agency contract. The court reverses, in part, a decision of the ASBCA on a Service Contract issue. The court found that a Wage Determination issued prior to a contract extension governed, even thought the WD was subsequently withdrawn.

ROTHE DEVELOPMENT CORPORATION v. DEPARTMENT OF DEFENSE and DEPARTMENT OF THE AIR FORCE, CAFC No. 04-1552, June 28, 2005. Judge Michel's decision notes “We hold that we do have jurisdiction to consider the facial constitutionality of the present reauthorization of section 1207 but that the record is inadequate to decide the issue because the district court declined to provide the necessary opportunity to expand the record despite explicit remand instructions.” CAFC therefore again vacates and remands to the District Court for the Western District of Texas the district court's summary judgment decision which had affirmed the constitutionality of § 1207 of the National Defense Authorization Act of 1987 (“the 1207 program”). [SDB 10 percent price adjustment program] See earlier CAFC decision.

CONSCOOP-CONSORIZA FRA COOPERATIVE DI PROD. E. LAVORO v. UNITED STATES, CAFC No. 04-5150, June 10, 2005. (Not citable as precedent.) Post-award protest, Navy contract. Court affirms the CAFC decision rejecting plaintiff’s argument that its late price proposal should be accepted. The CAFC holds the time stated in the solicitation governed even though the referring web page may have stated a different time.

RILEY & PHRIAM CONSTRUCTION COMPANY, INC. v. US, CAFC No. 04-5152, May 18, ,2005. Court reverses a COFC decision where Judge Baskir held that the receipt by the Post Office of certified mail is receipt by the contractor even where the contractor does not collect the mail from its Post Office box. The agency had faxed a copy of the CO’s final decision to the contractor and sent a copy by certified mail, return receipt requested. Judge Clevenger, noting that the burden is on the government to show the date of receipt by the contractor, states that the court “cannot infer receipt by evidence of [facsimile] transmission.” Judge Clevenger finds that “The Post Office was not an ‘agent’ for R&E, R&E never authorized the Post Office to sign for its mail, and further, the letter was not signed on the return receipt by a postal employee to indicate acceptance.” Holding that the CDA requires “objective evidence of receipt by the contractor”, the COFC decision is reversed. The Judge suggests that a CO should follow up on a facsimile transmission by calling the contractor to see that it received the transmission. [So much for e-commerce-JAW][ERRATA May 19, 2005, on page 7, line 20: Delete “contractor” and insert -- contracting officer --.]

KAW NATION, v. Gale A. Norton, SECRETARY OF THE INTERIOR, and KAW NATION OF OKLAHOMA, ex rel. GUY MUNROE, WANDA STONE, GUYETTA MONROE-MARTIN, and THE KAW NATION GENERAL COUNCIL, Intervenors, CAFC No. 04-1029, May 02, 2005. The Court agrees with the parties that the appeal of the IBCA decision is now moot as Interior as paid the disputed amounts and will not attempt to recover the funds. The Court does not resolve questions of the Board’s authority over tribal matters, but vacates the IBCA decision. The court concludes that “...tribal sovereignty concerns and the questions as to the IBCA’s jurisdiction to resolve intratribal disputes support a finding of exceptional circumstances that warrants vacatur.”

RICE SERVICES, LTD. v, UNITED STATES, CAFC No. 04-5069, April 27, 2005. EAJA fee case arising from a Navy procurement. While the protest was before the COFC the Navy unilaterally and voluntarily decided to conduct a new contract solicitation and the government moved to dismiss on the basis that the case was moot. Judge Merow granted the government’s motion to dismiss noting that the case was “essentially moot” and ordered that “The remedial action described and promised in defendant’s submissions shall be undertaken...” Judge Merow subsequently award EAJA fees finding that Rice was a prevailing party as the case was similar to that where a court remanded a matter to an agency. The CAFC reverses agreeing with the government “that Rice was not a ‘prevailing party’ under the Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and this court’s decision in Brickwood Contractors, Inc. v. United States, 288 F.3d 1371 (Fed. Cir. 2002)” The court stressed that there was no adjudication on the merits nor was there a consent decree incorporating the parties agreements.

TESORO HAWAII CORPORATION, TESORO ALASKA COMPANY and HERMES CONSOLIDATED, INC., d/b/a Wyoming Refining Company v. United States, CAFC No. 04-5064, April 26, 2005. Defense Energy Support Center (DESC), EPA clause cases wherein DESC drew its EPA reference prices from the market publication known as the Petroleum Marketing Monthly (“PMM”). In what may be the end of this long parade of multiple cases at the COFC, the Federal Circuit reverses and holds that the government’s use of the Economic Price Adjustment Clause was proper. The court notes that nine of the ten COFC cases addressing this issues since MAPCO, 27 Fed. Cl. at 409, have applied the reasoning of MAPCO and concluded that DESC’s use of a market-based EPA was not authorized by the FAR. Only one case, Williams Alaska Petroleum, found differently and there Judge Weise concluded that the reasoning in MAPCO as contradictory to the plain meaning of the words used in the regulation. The court here agrees with the analysis in the Williams decision and holds that it was legal error for the COFC to limit the use of market based prices and therefore reverses.

BANNUM INC., v. US, CAFC No. 04-5008, April 21, 2005. Post-award bid protest, Bureau of Prisons (BOP) procurement, evaluation of past performance issues. Court affirms Judge Bruggink’s opinion that dismissed the protest finding that although BOP violated law and procurement regulations, that there was no prejudice to Bannum. Judge Gajarsa’s opinion holds that the phrase “at a level above the contracting officer” in FAR 42.1503 “contemplates review by a person with authority to direct the contracting officer’s response.” The court disagrees with the government’s argument that BOP procedures which called for a review by a third party without authority over the contracting officer were in substantial compliance with the regulation. Noting that the court had not squarely considered the standard to be used when reviewing a COFC factual determination the court now holds that “RCFC 56.1 requires the Court of Federal Claims, when making a prejudice analysis in the first instance, to make factual findings from the record evidence as if it were conducting a trial on the record. In such circumstances this court reviews such findings for clear error, consistent with RCFC 52 and appellate review of factual determinations underpinning a discretionary ruling on preliminary injunction.” Finding no such error the appeal was denied.

BENDER GMBH, v. Francis J. Harvey, SECRETARY OF THE ARMY, CAFC No. 04-1327, March 21, 2005. Not citable as precedent. Court affirms the ASBCA. Subsequent to acceptance of the work the Army revoked its acceptance and demanded appellant return overpayments. The ASBCA had “ruled that the Army properly revoked its final acceptance of contract performance because Bender made ‘gross mistakes amounting to fraud’ by invoicing for 430 cubic meters of sludge disposal when it had disposed of only 229.12 metric tons of sludge.” The CAFC affirms finding the delay in revoking acceptance was reasonable as the Army had put the contractor on notice that there were problems with its invoices.

UNITED PACIFIC INSURANCE COMPANY v. James G. Roche, SECRETARY OF THE AIR FORCE, CAFC No. 04-1333, March 18, 2005. Plaintiff was the surety on a construction contract and had executed a takeover agreement with the Air Force. Court affirms the ASBCA decision that the Board had no jurisdiction on pre-takeover claims. (See earlier CAFC decision on this issue.) Court also affirms the ASBCA denial of a claim based on a Whereas clause in the takeover agreement which recited unpaid balance of funds due original contract, but had actually overstated the amount due by some $48,000. The court affirmed the Board which had found that the “‘Whereas’ clause was not controlling because the clause was a mere recital of an undisputedly erroneous fact;” The court, finding no affirmative misconduct also, agreed that the government was not estopped from denying the claim.

ROY HURSH v. GSA, CAFC No. 04-3454, March 11, 2005. Not citable as precedent. Court affirms the suspension without pay of an Information Technology Specialist in the Federal Technology Service (“FTS”) for improper contracting practices—“[I]mproper modification of contract, for using letters to change the contract at issue without authority; and split procurements under 48 C.F.R. § 19.805-1(c), for using two procurements close in time and for basically the same work in order to avoid the competitive threshold of $3,000,000.” The court rejected Hursh’s arguments that because he was not a contracting officer he was immune from the split procurement charge. The court notes “That Hursh was a Business Development Specialist, rather than a contracting officer, does not immunize him from liability for split procurement. Hursh cites no authority for the proposition that one must be a contracting officer to be charged with split procurement. We see no error in the arbitrator’s conclusion that an employee acting in concert with a contracting officer can be disciplined under the regulation prohibiting split procurement.”

FRANK E. FISHER v. US, CAFC No. 02-5082, March 09, 2005. Court reverses the COFC and by separate order a “petition for rehearing en banc is granted for the limited purpose of overruling this court’s decision in Gollehon Farming v. United States, 207 F.3d 1373, 1379 (Fed. Cir. 2000), and clarifying the procedure for determining Tucker Act jurisdiction.” The court overrules the two-step process of addressing whether a source is money-mandating. Good discussion of Tucker Act jurisdictional and justiciability of military disability cases.

HOME SAVINGS OF AMERICA, FSB, and H.F. AHMANSON & COMPANY v. Us, CAFC Nos. 04-5020, 5032, March 07, 2005. Winstar case. Summary judgment against plaintiff's suit, alleging the government breached a contractual agreement to accord favorable accounting treatment with respect to acquisitions of federally insured thrifts, is vacated where there is an issue of whether the parties made a binding promise.(Findlaw summary)

TEXAS HEALTH CHOICE, L.C. v. OPM, CAFC No. 04-1400, March 03, 2005. In an opinion by the now Chief Judge Michel, the CAFC reverses a Texas District court that denied a motion by the government to transfer a case to the Court of Federal Claims. Plaintiff had argued that an OPM regulation which was incorporated into its contract with OPM was invalid. Plaintiff had submitted a certified claim to the OPM contracting officer, who never responded. Judge Michel notes that even though plaintiff did not pursue a money claim in the District Court that “... is of no consequence to the question of jurisdiction because the complaint relates to a dispute implicating a contract with the Government. Indeed, Texas Health’s complaint expressly mentions its FEHBA contract with the Government and the deemed denial of its claim before the contracting officer. Therefore, the district court simply does not have jurisdiction over Texas Health’s suit.” Ex-Chief Judge Mayer dissents.

GREENWOOD ASSOCIATES, L.P. v. Stephen A. Perry, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, CAFC No. 04-1286, February 22, 2005. CAFC affirms a GSBCA decision in a GSA lease dispute over property taxes. The court agrees that the term “taxes paid for” in the phrase “taxes paid for the calendar year” in they tax adjustment clause of the contract was not ambiguous and “In tax parlance, the phrase ‘paid for’ a certain year refers to taxes accrued during that year, regardless when those taxes are actually paid.”

SINGLETON CONTRACTING CORPORATION v. Harvey (SECRETARY OF THE ARMY), CAFC No. 04-1119, January 26, 2005. Court affirms the ASBCA decision that Singleton’s failure to furnish an insurance certificate was a concurrent source of the delay and therefore did not justify an unabsorbed overhead claim. The court did reverse and award Singleton termination for convenience settlement costs which the ASBCA did not address in it’s decision.

CALIFORNIA FEDERAL BANK v US, CAFC Nos. 03-5070, -5082, January 19, 2005. Winstar case. Court affirms the decision of the COFC denying CalFed’s damages on a lost profit theory. The COFC based its ruling on “(1) that CalFed had failed to prove its loss of profits from the sale of the assets, including the ARMs, was foreseeable; (2) that CalFed had failed to prove that the ARMs and other assets were sold because of the breach; and (3) that the method of calculating damages advocated by CalFed was too speculative to serve as the basis for a damages award.” Judge Bryson, writing for the court, upholds the COFC opinion on the causation issue, and because that is dispositive, does not reach the forseeability and measurement of damages issues. Judge Bryson rejects CalFed’s argument that the COFC applied wrong standard and that the breach need only be a “substantial factor” contributing to the loss. Instead, Judge Bryson notes that “the causal connection between the breach and the loss of profits must be ‘definitely established.’ [citations omitted]”

Bannum, Inc. v. US, CAFC 04-5105, January 12, 2005. Not citable as precedent. Court affirms COFC holding that CDA interest does not begin to accrue until a claim is received or the contractor requests a final decision.

VA VENTURE PUEBLO, LLC v. US, CAFC 04-1243, December 16, 2004. Not citable as precedent. Court affirms the VABCA. Plaintiff argues that the Board made findings inconsistent with those made by the CO and rejected awards that VA did not oppose. The Court notes that plaintiff “fails to acknowledge, however, is that ‘once an action is brought following a contracting officer’s decision, the parties start in court or before the board with a clean slate.” and “Where an appeal is taken to a board or a court, the contracting officer’s award is not to be treated as if it were the unappealed determination of a lower tribunal which is owed special deference or acceptance on appeal. In other words, the ‘contractor has the burden of proving the fundamental facts of liability and damages de novo.” [citations omitted] The Court also finds no error by the Board it the evaluation of the claim and the denial of interest paid on borrowings.

San Juan City College, et al. v. U.S., CAFC No. 03-5180, December 09, 2004. Department of Education agreement to provide financial aid to students and programs under the Higher Education Act. The court reverses the COFC which had held that even if the agreement between the parties had been breached, the only remedy available was equitable and not in contract. Judge Bruggink, below, had concluded that “... as a matter of law, violation of the agreement, insofar as it involves a failure to offer a hearing under 34 C.F.R. § 668.86, creates a right only to equitable relief.” ... “[T]he agreement, even if viewed in traditional contract terms, does not, as a matter of law, permit the recovery of the type of damages they seek.” The CAFC reverses and remands to the COFC to determine whether or not a breach occurred. Judge Friedman writes “We see nothing in either the Agreement itself or in the governing statute or regulations that supports the Court of Federal Claims’ view that the parties understood that damages would not be available in the event of breach. Normally contracts do not contain provisions specifying the basis for the award of damages in case of breach, with the exception of provisions governing damages in particular situations, such as liquidated damages for delay or other specified breaches. The fact that this contract covers government financial grants does not warrant a different standard. If the government has breached the Agreement, the College is entitled to seek whatever damages it is entitled to receive.”

NIRA SCHWARTZ WOODS v. US, CAFC No. 04-5113, December 8, 2004.(Not citable as precedent). CAFC affirms the COFC’s dismissal of suit for lack of subject matter jurisdiction. Plaintiff brought the action in the COFC as a result of its qui tam claims being dismissed by a district court. Plaintiff asked for damages for the government’s breach of an implied covenant of good faith and fair dealing and for breach of her rights as relator in both qui tam actions; for being “black-balled” and for defamation of character; and for endangering national security by permitting what she referred to as false and fraudulent technology to be used in the National Missile Defense Program; and finally, for punitive damages. In a per curiam decision the court notes that the COFC has no jurisdiction over substantive FCA matters and has no jurisdiction over tort claims. Finally, any duty of the government to deal fairly in qui tam actions gives rise to an imputed promise to perform a legal duty. As such, it is a contract implied in law and cannot form the basis for jurisdiction in the Court of Federal Claims.

PGBA, LLC v. US and WISCONSIN PHYSICIANS SERVICE INSURANCE CORPORATION (WPS), CAFC No. 04-5101, November 22, 2004. Post-award bid protest, TRICARE Management Activity (TMA). CAFC affirms the COFC's decision not to set aside the award even though the COFC found the government’s actions in awarding the contract to WPS were arbitrary and capricious. Writing or the Court, Judge Schall rejects plaintiff’s argument that the ADRA requirement at 28 USC 1491(b)(4) that the COFC review an agency's decision pursuant to the standards of 5 USC 706 also requires the COFC to set aside an action found to be arbitrary and capricious. Judge Schall agrees with the government that although the ADRA does incorporate the arbitrary and capricious standard of review of 5 USC 706, it does not incorporate the mandate to set aside such an action. Finding that the COFC’s exercise of discretion was not abused, the COFC decision is affirmed.

CAMPBELL PLASTICS ENGINEERING & MFG., INC., v. Les Brownlee, ACTING SECRETARY OF THE ARMY, CAFC No. 03-1512, November 10, 2004. Army contract. In a case of first impression the CAFC affirms the ASBCA decision upholding the government’s demand for title to an invention because of appellant’s failure to disclose the invention as required by the contract. Rejecting appellant’s argument that the substance of the invention had been disclosed in various reports to the government, Judge Clevenger holds that the “contract requirement of a single, easily identified form on which to disclose inventions is sound and needs to be strictly enforced.” The court agrees that the ASBCA properly found that the ACO did not abuse his discretion and holds “that harm to the government is not a requirement in order for the ACO to insist on forfeiture and remain within the bounds of sound discretion.”

Gordon R. England, SECRETARY OF THE NAVY v. CONTEL ADVANCED SYSTEMS, INC., CAFC No. 04-1006 October 6, 2004. Navy indefinite quantity contract for lease to ownership (LTO) of certain equipment to be paid by the government in 60 monthly installments. Contel had requested the Air Force to reduce the contract price to reflect the actual numbers of items furnished. The Air Force did not make the reductions until 52 payments had been made. Contel claimed as damages the interest on the excess money it was required to borrow because of the Air Force delay in reducing the contract price. The ASBCA sustained the claim. In an opinion by Judge Dyk the Court reverses the ASBCA, and finds instead that the damages claimed by Contel were interest that was barred by the no-interest rule and it had not been waived by the government. The court noted that the government did not require Contel to obtain financing or otherwise instructed Contel to borrow money. Judge Dyk states that the fact that the Air Force may have been “inflexible in its requirements for assignment of the installment payments, is not sufficient to waive the no-interest rule.” Judge Newman dissents.

FRASER CONSTRUCTION COMPANY v. US, CAFC No. 03-5155, September 27, 2004. Corps of Engineers flood control project contract. Court affirms the COFC which, on remand, had found that the contractor had failed to prove that the government had constructively accelerated its performance. Judge Bryson noted that “To be sure, an expression of concern about progress, combined with a refusal to issue extensions, can be the equivalent of an order to accelerate. See, e.g., Norair, 666 F.2d at 548. Such expressions do not always constitute the equivalent of orders to accelerate, however, particularly if the expression comes before the time when the contractor has raised a specific and valid claim of right to an extension.”

UNITED PACIFIC INSURANCE COMPANY v. James G. Roche, SECRETARY OF THE AIR FORCE, CAFC No. 03-1622, August 18, 2004. Air Force construction contract. CAFC affirms the ASBCA holding under Fireman’s Fund Insurance Co. v. England, 313 F.3d 1344 (Fed. Cir. 2002) that the board had no jurisdiction over the claims of United, a surety, that arose before the takeover agreement between United and the government. Judge Friedman also rejects United’s argument that the terms of the takeover agreement with the government gave it the right to challenge the government's overpayment to the prime. The court notes that such provisions in the takeover agreement “did not give the Board jurisdiction over the claim. The Board’s jurisdiction is defined by the Contract Disputes Act. Parties cannot, by agreement, confer upon a tribunal jurisdiction that it otherwise would not have.”

E.L. HAMM & ASSOCIATES, INC. v. Gordon R. England, SECRETARY OF THE NAVY, CAFC No. 03-1572, August 17, 2004. Navy property management contract. The CAFC reverses the ASBCA, finding that the Board’s determination that Hamm was not misled by a defect in the specifications was not supported by substantial evidence. The case is remanded to the ASBCA for quantum determination. Judge Prost summarizes the rules for defective specification case as follows: “where a contractor-claimant seeks to recover an equitable adjustment for additional work performed on account of a defective specification, the contractor-claimant must show that it was misled by the defect. To demonstrate that it was misled, the contractor-claimant must show both that it relied on the defect and that the defect was not an obvious omission, inconsistency or discrepancy of significance—in other words, a patent defect—that would have made such reliance unreasonable.” Judge Prost also notes that the parties “mistakenly argue over the existence of an ambiguity. At issue in this case is the existence of a defect, not an ambiguity. [citations omitted].” The court finds that Hamm reasonably relied on the defective specification, which did not contain a patent defect that might preclude it from recovering an equitable adjustment.

FORD MOTOR COMPANY v. US, CAFC No. 03-5092, August 10, 2004. The CAFC reverses the COFC and holds that the Contract Settlement Act applies to CERCLA clean-up costs at a Ford bomber plant arising from a World War II contract. Judge Newman also interprets the 1945 and 1946 War Contract termination agreements to cover claims, such as CERCLA claims, which were not envisioned at the time. The case is remanded to the COFC for judgment in favor of Ford, including any appropriate review of the quantum of recovery. Judge Schall dissents, disagreeing with the majority’s interpretation of the Termination Agreement.

GLENDALE FEDERAL BANK, FSB, v. US, CAFC No. 03-5136,, 0-5139, August 9, 2004. Winstar case. In this second appeal of the damages issue the CAFC affirms the COFC opinion by Senior Judge Smith awarding $381 million in this "wounded bank damages decision. In an opinion by Judge Plager, he notes “However denominated, the focus of a recovery based on the reliance interest is the real costs incurred for capital and services that the thrift would not have incurred but for the contract and its subsequent breach. Whether in a given case this properly includes the higher costs to a thrift of conducting its general business after FIRREA-the “wounded bank” claim-is a matter of proof; if too speculative, it can and should be denied as the burden lies with the plaintiff to establish its damages. In the case before us, we are unpersuaded that the trial court’s factual findings and conclusions regarding reliance damages, based on the earlier record, are clearly erroneous; the judgment in that regard is fully consistent with the law as we enunciated it. The award of reliance damages in the amount of $381 million is affirmed.”

NORFOLK DREDGING COMPANY, INC. v. US and BEAN STUYVESANT, L.L.C., CAFC Nos. 04-5040, 5041, July 7, 2004. CAFC reverses COFC decision in this pre-/post-award bid protest case. The case involves the interpretation of the Foreign Dredge Act of 1906 as amended by § 5501 of the Oceans Act of 1992 (codified at 46 U.S.C. app. § 292). Writing for the court, Judge Linn finds that the COFC erred in construing the statutory exception to 46 U.S.C. app. § 292 and in concluding that Bean’s activities did not fall within the scope of the statutory exception. Remanded with instruction to enter summary judgment for Bean and the US.

MARATHON OIL COMPANY and MOBIL OIL EXPLORATION & PRODUCING SOUTHEAST, INC.v. UNITED STATES, CAFC No. 03-5147, June 30, 2004. The court affirms a COFC decision denying interest on claims by the oil companies demanding post-judgment interest on the Federal Circuit contract judgment. The oil companies argue that they are entitled to interest pursuant to 28 U.S.C. § 1961(c)(2). In an involved decision discussing the scope of the waiver of sovereign immunity and the “no-interest rule”, Judge Clevenger considers the other statutes referenced in Section 1961 and after much analysis concludes that section 1961(c)(2) does not unambiguously waives sovereign immunity for post-judgment interest on “all” judgments of the Federal Circuit. Judge Prost dissents finding that there is only one plausible reading of 1961(c)(2) and “It is the reading that maintains that interest shall be allowed on all final judgments against the United States in the United States Court of Appeals for the Federal Circuit.”

NVT TECHNOLOGIES, INC. v. US, CAFC No. 03-5045, June 3, 2004. Bid protest, Navy A-76 solicitation. The CAFC affirms Judge Firestone’s alternative finding that the solicitation was ambiguous and the ambiguity was patent. Because NVT did not inquire, it cannot prevail. Judge Linn finds that because both the government's and NVT's interpretations of the disputed language were within the “zone of reasonableness” the solicitation was ambiguous. Judge Linn finds that where “a certain set of line items is expressed in a manner so different from hundreds of other line items, yielding totals disproportionate to the remainder of the solicitation, we find the differences to be “obvious, gross, [or] glaring,” [citation omitted] requiring NVT to inquire. Because the solicitation was ambiguous, but any ambiguity was patent, and because it is undisputed that NVT did not inquire into such ambiguity, NVT cannot prevail.” Judge Linn also holds that because NVT did not inquire, it cannot prevail on its defective specification mistake in bid claim. Judge Prost dissents stating—“I find any ambiguity to be latent. Thus, because NVT’s bid would have been lower than the government’s bid under the proper interpretation, I believe NVT should have been awarded the contract.”

GARDINER, KAMYA & ASSOCIATES, P.C., v. Alphonso Jackson, ACTING SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CAFC No. 03-1235, May 27, 2004. HUD IDIQ 8(a) contract for services relating to mortgage insurance claims. Court reverses and remands, finding that the HUD Board erred in concluding that a modification lacked consideration. At the end of the contract term, HUD requested a no cost extension of two task orders while it was preparing to solicit a new omnibus contract which would replace the present contract. GKA refused, as it believed that the level of effort for the task orders was too low. The parties finally agree to a modification that provided an extension and that the “ prices shall remain in effect pending results of the audit and subsequent negotiations of the unit prices.” GKA claimed that the modification allowed for an audit and repricing of work performed prior to the modification. The HUDBCA rejected that argument finding that the modification lacked adequate consideration to reprice the retroactive period. Chief Judge Mayer concludes—“The board’s findings were sufficient to conclude that GKA’s agreement to enter into an extension was contingent upon a complete repricing. So long as GKA insisted that a retroactive price adjustment was a condition of the extension, HUD could not have forced GKA to enter into a new task order, agree to an extension of an old order, or provide services solely on HUD’s terms. GKA’s promise to perform the tasks under Modification 2, when it was not so obligated, was sufficient consideration for HUD’s return promise to retroactively and prospectively reprice Task Orders 13 and 14.”

TURNER CONSTRUCTION CO., INC. v. US, CAFC No. 03-5055, May 12, 2004. Department of Veterans Affairs(VA) construction contract CDA claim. Court reverses COFC decision, as to entitlement, which denied Turner's claim and remands for further proceedings. Chief Judge Mayer dissents. As a matter of contract interpretation the court concludes "that Turner’s reading of the contract and reliance on the specifications and drawings was reasonable, and that the government’s requirement that additional fire-rated systems be installed was a material change."

RUMSFELD v. GEN. DYNAMICS CORP., CAFC No. 03-1209, April 29, 2004. Court reverses-in-part a decision by the ASBCA. 10 U.S.C. section 2324(k) does not require or permit the apportionment of contractor costs associated with a proceeding among various claims where the proceeding is resolved through consent or compromise, and no such costs are allowable except as expressly provided by the settlement agreement. (Synopsis from FindLaw)

E.I. DU PONT DE NEMOURS and COMPANY, INC., v. UNITED STATES, CAFC No. 03-5137, April 28, 2004. DuPont had sued under the CDA to recover CERCLA costs it had incurred in this World War II contract to construct and operate an ordinance plant in West Virginia. Writing for the court Judge Michel agrees that the trial court correctly held that the government had agreed to indemnify DuPont for the costs at issue, but reverses the COFC decision in this case insofar as the Judge Turner found that the Anti-Deficiency Act(“ADA”) precluded recovery. Judge Michel agrees with DuPont's argument that the ADA exception “unless such contract or obligation is authorized by law” is operative here and the Contract Settlement Act of 1944 (“CSA”), 41 U.S.C. §§ 101 et seq. (2000), is the “authorize[ation] by law” that prevents the parties indemnification agreement from the reach of the ADA. Accordingly the case is remanded for a determination of damages and entry of judgment in DuPont’s favor.[The CAFC opinion indicates that COFC Judge Block decided this case. That appears to be an error-jaw]

BANKNOTE CORPORATION OF AMERICA, INC. and GUILFORD GRAVURE, INC., v. UNITED STATES et al., CAFC No. 5104, April 26, 2004. Post award bid protest of a "best value" US Postal Service award. The CAFC affirms the decision of the COFC denying the protest. Judge Plager agrees that in view of GAO bid protest cases holding that when “a solicitation indicates that price will be considered, without explicitly indicating the relative weight to be given to price versus technical factors, price and technical considerations will be accorded approximately equal weight and importance in the evaluation” the “Contracting officer in this case made a reasonable judgment when he considered price and technical to be approximately equal and ultimately concluded that the additional cost of Guilford’s proposal would not offset its strong technical evaluation”.

AINS, Inc. v. US. CAFC No. 03-5134, April 23, 2004. Court affirms the COFC's decision that the Mint is a “non-appropriated funds instrumentality” (NAFI) for which Congress has not waived sovereign immunity to allow breach of contract suits in the COFC. Writing for the court, Judge Gajarsa sets out " The Four-Factor NAFI Test"-"A government instrumentality is a NAFI if: (1) It does “not receive its monies by congressional appropriation.” Hopkins, 427 U.S. at 125 n.2; (2) It derives its funding “primarily from [its] own activities, services, and product sales.” Cosme Nieves v. Deshler, 786 F.2d 445, 446 (1st Cir. 1986); (3) Absent a statutory amendment, there is no situation in which appropriated funds could be used to fund the federal entity. General Electric, 727 F.2d at 1570; and (4) There is “a clear expression by Congress that the agency was to be separated from general federal revenues.” L'Enfant Plaza, 668 F.2d at 1212."

HPI/GSA-3C, LLC v. Stephen A. Perry, Administrator, GENERAL SERVICES ADMINISTRATION, CAFC No. 03-1252, April 12, 2004. GSA contract. The court, with Judge Linn dissenting in part, vacates the GSBCA decision and remands to the Board for further proceedings relating to the interpretation of the term "zone" in this dispute over overtime charges for HVAC services. While agreeing with the Board that the term was ambiguous and that the discrepancy was not patent, the court is unable to discern whether the fourth element of the contra proferentem rule is met- "(4) that the contractor actually and reasonably construed the specifications in accordance with one of the meanings of which the language was susceptible."

EMPIRE ENERGY MANAGEMENT SYSTEMS, INC. v. James G. Roche, SECRETARY OF THE AIR FORCE, CAFC No. 03-1277, March 24, 2004. The court affirms the ASBCA which had upheld a termination for default of a contract to provide cogeneration capabilities at McDill Air Force base. The court rejects Empire's argument that its delay was excusable by the Resource Conservation and Recovery Act Facility Investigation ongoing at the work site, finding instead that construction could have proceeded. Chief Judge Mayer dissents finding that Empire reasonably waited to receive EPA approval before resuming work.

CHRISTOPHER VILLAGE, L.P. and WILSHIRE INVESTMENTS CORP. v. US, CAFC No. 02-5188, March 08, 2004. CAFC affirms Judge Firestone’s COFC opinion granting summary judgment for the government. Judge Dyk's opinion begins- “This case presents the question whether a federal district court has jurisdiction to issue a declaratory judgment as to the government’s liability for breach of contract solely in order to create a “predicate” for suit to recover damages in the Court of Federal Claims. We hold that district courts do not have such jurisdiction because the Court of Federal Claims has exclusive jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (2000), to adjudicate breach of contract claims for money damages in excess of $10,000, and Congress has not waived sovereign immunity for such suits in district courts.” The court also rejects appellant’s argument that even if there was fraud in the dealing with the government, such fraud was immaterial to justify the government's subsequent breach. Judge Dyk notes "...our case law holds that any degree of fraud is material as a matter of law. "

J.C. EQUIPMENT CORPORATION v. Gordon R. England, SECRETARY OF THE NAVY, CAFC No. 92-1472, March 5, 2004. Court rejects appellant's appeal and affirms both ASBCA decisions on entitlement and quantum. Court rejects government's argument that the appeal of the entitlement decision is untimely as it was not brought within 120 days of that decision. Judge Friedman notes that its recent decision in Brownlee v. Dyncorp is dispositive on this issue. There the court held that no decisions had held that appeals were required before the question of quantum was resolved.

HI-SHEAR TECHNOLOGY CORPORATION v. US, CAFC No. 03-5077, February 02, 2004. CAFC affirms COFC's calculation of plaintiff's damages for the government's breach of requirements contracts caused by negligent estimated quantities. The court rejects plaintiff's "so-called" reliance damages argument finding that what plaintiff is trying to collect is its total costs under the requirement contracts. Noting that although such costs may be available under a termination for convenience, that was not the case here.

Gordon R. England, SECRETARY OF THE NAVY V. THE SWANSON GROUP, INC., CAFC NO. 03-1051, January 09, 2004. In a prior Contract Disputes Act (Act) proceeding the ASBCA converted Swanson's termination for default to a termination for convenience. Swanson received the Boards decision on November 17, 1987, and on November 10, 1998, sent a letter requesting a one-year extension of time "to initiate the claim". The request for an extension was denied by the contracting officer, but Swanson was told that the CO would consider any information submitted by Swanson while the CO was making a settlement determination. In a unilateral settlement determination issued on March 04, 1999, the CO awarded Swanson $12,294 in settlement costs. Swanson appealed that decision to the Board. The Board rejected the government's argument that Swanson had forfeited it right to appeal by failing to submit a termination settlement proposal within the one-year period established by FAR 52.249-2. The Board awarded Swanson a total of $278,076. The Navy appeals and argues for the first time "... that because Swanson did not submit a claim, or a termination settlement proposal that could have ripened into a claim, prior to the contracting officer's settlement determination, the Act did not provide for an appeal of that determination." The CAFC agrees, and now reverses holding that the ASBCA did not have jurisdiction. Swanson's appeal "..was not authorized by the CDA because it was not an appeal from a contracting officer's final decision on a claim that Swanson had submitted. Accordingly, the Board did not have jurisdiction to adjudicate Swanson's appeal."

CAIN et al. v. US, CAFC NO. 03-5020 , December 04, 2003. Winstar case. CAFC affirms COFC's holding that shareholders of thrift had no privity of contract with the government. Judge Newman dissents stating that the dismissal by the COFC by summary judgment, was incorrect "... without providing an opportunity for the investors to establish the existence of a contract, in view of the extensive documentary evidence supporting mutual intent, reliance, and performance."

BILL J. COPELAND V. Ann M. Veneman, SECRETARY OF AGRICULTURE, CAFC No. 03-1326, November 25, 2003. Court affirms the AGBCA which had upheld a default termination finding that performance had been delayed and the delay was not excusable. The Board had rejected appellant's argument that the CO's withholding of funds from progress payments for alleged Davis Bacon Act violations improper and the cause of the delay. A DOL administrative law judge had eventually dismissed the DBA violations and ordered that withheld funds be returned. In an opinion by Judge Dyk, the court finds that the determination by the CO was reasonable and in accordance with the DBA provisions which were incorporated within the contract. The court also noted that because appellant had the burden of showing that e delay was excusable it also had the burden of showing that the withholding was excessive. As appellant met neither of these burdens, the AGBCA decision was affirmed

Les Brownlee, ACTING SECRETARY OF THE ARMY, v. DYNCORP, CAFC No. 02-1601, November 13, 2003. Case involves costs for defending criminal proceedings brought by the government where an employee, but not the contractor, was convicted. Court reverses and remands to the ASBCA. The court first rejects Dyncorp's argument that the appeal is untimely and holds that the Army's appeal from an ASBCA quantum decision is timely even though the Army could have appealed the earlier entitlement decision. The ASBCA had awarded as allowable contract costs a part of the contractor’s legal fees incurred in defending against criminal charges brought by the United States. The Board held that the provision of FAR 31.205-47(b), which made unallowable costs defending a criminal proceeding brought by the US if the result was a conviction, was invalid as contrary to statute, 10 U.S.C. 2324. The court holds otherwise, finding that the regulation properly implements the statute by defining contractor to include an employee and is accorded deference under Chevron.

Donald H. Rumsfeld, SECRETARY OF DEFENSE v. FREEDOM NY, INC. , CAFC Nos. 02-1105, -1130, October 10, 2003. CAFC denies rehearing of its earlier decision. Rejecting Freedom's argument that a letter to DLA should have been incorporated into a modification, the court noted that "One party to a contract cannot bind the other simply by attaching a document to a copy of the contract, even if that particular copy is signed. Restatement (Second) of Contracts § 132." The court also noted that the modification itself contained an integration clause.

PROPELLEX CORPORATION v. Les Brownlee, ACTING SECRETARY OF THE ARMY , CAFC No. 02-1538, September 09, 2003. Army contract. Court affirms the ASBCA which had denied contractor's modified total cost claim because Propellex had failed to establish that it was impracticable for it to prove its actual losses directly. Judge Schall's opinion notes that to prevail on a modified total cost theory the contractor must prove: "(1) the impracticability of proving its actual losses directly; (2) the reasonableness of its bid; (3) the reasonableness of its actual costs; and (4) lack of responsibility for the added costs." The court found substantial evidence supporting the ASBCA decision and holds that "Where it is impractical for a contractor to prove its actual costs because it failed to keep accurate records, when such records could have been kept, and where the contractor does not provide a legitimate reason for its failure to keep the records, the total cost method of recovery is not available to the contractor."

ANTHONY PERRI (also known as ANTHONY MARINO) v.US, CAFC No. 03-5012, August 18, 2003. Allegation that plaintiff was promised portion of forfeited property for cooperation and assistance to Justice in a criminal case. COFC decision dismissing this case is affirmed. CAFC reiterates that equitable remedy of quantum meruit is not available to the COFC in the absence of some contractual arrangement between the parties.

R & W FLAMMANN GmbH v.US, CAFC No. 03-5014, August 07, 2003. The CAFC reverses COFC Judge Gibson's decision in this FOIA case.(see COFC case ) The court finds that the COFC erred as a matter of law. The court notes that sealed bid information enters the public domain upon bid opening. The court holds that once an item is in the public domain a subsequent disclosure does not fall within the Exemption 4 of the FOIA or is subject to the Trade Secrets Act. Similarly, since the FOIA required disclosure there can be no appearance of impropriety, as found by Judge Gibson, under FAR § 1.602-2 as the statute obligated the government to disclose and superceded any contrary regulatory requirement.

FIRST COMMERCE CORPORATION v. US, CAFC No. 02-5183, July 16, 2003. Winstar case. While agreeing with the COFC's analysis of the alleged offer and acceptance did not result in a contract, the CAFC finds that traditional contract law principles compel the conclusion that the government made a counteroffer to First Commerce's formal proposal to acquire the thrift. "Because this counteroffer may have given rise to a binding contract between First Commerce and the United States," [the CAFC] vacate[s] the grant of summary judgment to the United States and the denial of summary judgment to First Commerce, and remands the case to the COFC.

Tommy G. Thompson, SECRETARY OF HEALTH AND HUMAN SERVICES, v. CHEROKEE NATION OF OKLAHOMA, CAFC No. 02-1286, July 3, 2003. The CAFC affirms a decision of the IBCA which found that the Secretary of the Department of Health and Human Services breached his contracts with the Cherokee Nation of Oklahoma, entered into pursuant to the Indian Self Determination and Education Assistance Act, 25 U.S.C. §§ 450–450n ("ISDA"). In an opinion by Judge Dyk, the court disagrees with the approaches of the Ninth and Tenth Circuit cases in interpreting appropriation statutes in similar cases. The court holds "...that there were available appropriations to pay the appellee its full indirect costs, because there were no statutory caps on funding in the appropriations acts for the relevant fiscal years, and that the Secretary has not shown that full payment would require the Secretary "to reduce funding for programs, projects, or activities serving [another] tribe." case involves the interpretation of appropriation statutes and associated committee report. Judge Dyk discussion several fundamental principles of appropriations law, including a holding that the language "available until expended" in the statutes at issue did not denote a statutory cap on funding to a particular source, but as an authorization of "carryover authority."

STANLEY K. MANN v. US, CAFC No. 03-5013, June 27, 2003. BLM geothermal lease. Receipt by the government of an unsigned copy of a letter sent to a surety by the lessee does not change the address of record for the lessee. A certified termination notice sent to such address, which was returned as unclaimed, did not serve as constructive notice and without actual or constructive notice the government was in breach of the lease. COFC decision reversed and remanded.

SCOTT TIMBER COMPANY v. US, CAFC No. 02-5142, June 26, 2003. Forest Service case. CAFC affirms in part and reverses in part a COFC decision concerning alleged breach of timber sales contracts when the Forest Service suspended Scott's performance on the timber contracts to protect the marbled murrelet, a tiny bird. Several of the contracts at issue did not contain a suspension of work clause, but did contain a clause which allowed the Forest Service to cancel or modify the contracts if a new species was threatened. The CAFC reverses the COFC holding that the clause granted the Forest Service the implied authority to suspend the contracts. The CAFC also reverses the COFC's finding, in those contracts which did have a suspension of work clause, that the length of the suspensions were reasonable as a matter of law. The CAFC determines that the reasonableness of the suspension is a factual matter which must be reconsidered on remand.

D & N BANK v. US, CAFC Nos. 02-5130, -5133, June 17, 2003. CAFC affirms the COFC decision finding that there was no contract between the government and the bank in this Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA") case. Judge Michel states "...there needs to be something more than a cloud of evidence that could be consistent with a contract to prove a contract and enforceable contract rights." Finding that there was no mutuality of intent to contract, Judge Turner's COFC decision was affirmed.

CHANCELLOR MANOR v. US, CAFC No. 02-5066, June 12, 2003. In a 5^th Amendment regulatory takings case the CAFC affirms the COFC holding granting summary judgment for the government on the issue of the breach of contract claims because there was no privity of contract. However, the COFC erred in its determination that plaintiffs did not possess protectible real property interests and thus presented no compensable takings claims.

CIENEGA GARDENS et al. v. US, CAFC No. 02-5050, June 12, 2003. In another 5^th Amendment regulatory takings case, the CAFC funds that the COFC erred in holding (1) that developers who voluntarily participated in HUD housing programs had no vested property rights, and (2) that if any taking occurred, it could not as a matter of law, be a compensable taking.

NICON, INC. v.US, CAFC No. 02-5097, June 10, 2003. COE Contract. Court vacates COFC decision which granted summary judgment for the government on an unabsorbed home office claim under the Eichleay formula because the formula is not applicable where performance had not yet begun. The contract was awarded on March 30,1998, but a notice to proceed was never issued because of a bid protest. Protest was dismissed by the GAO on July 15, 1998 and contract terminated for convenience on January 12, 1999 without ever issuing a notice to proceed. The CAFC remands "... or further proceedings to determine if Nicon may recover unabsorbed overhead damages as part of its termination for convenience settlement by some other method of allocation." Judge Newman concurs with the remand, but she disagrees with the majority the Eichleay formula is inapplicable to this case.

Donald H. Rumsfeld, SECRETARY OF DEFENSE v. FREEDOM NY, INC. , CAFC Nos. 02-1105, -1130, May 22, 2003. CAFC affirms, in part, reverses, in part, and remands to the ASBCA. Writing for the court, Judge Dyk affirms the ASBCA's finding that the insistence by DLA that the contractor agree to a modification before a progress payment would be made was an improper act of duress which vitiated the modification. The court, however, reversed the Board's finding that the government had breached a "side agreement" which the contractor had argued was part of another modification. The modification contained an integration clause as follows: “Both parties expressly state that the aforesaid recitals are the complete and total terms and conditions of their Agreement.” Judge Dyk notes that the court follows the traditional rule that “an integration clause ‘conclusively establishes that the integration is total unless (a) the document is obviously incomplete or (b) the merger clause was included as a result of fraud or mistake or any other reason to set aside the contract.’ (citations omitted) There are no such circumstances present here.”

H. T. Johnson, ACTING SECRETARY OF THE NAVY, v. ALL-STATE CONSTRUCTION,INC. , CAFC No. 02-1442, May 21, 2003. Subsequent to letters advising the contractor that the government was considering termination of the contract for default and assessing liquidated damages the contractor submitted an invoice for progress payments. The contracting officer denied the progress payment stating that the government's pending liquidated damages exceeded the amount of the progress payment. The contract was then terminated for default. Upon appeal of the default termination to the ASBCA the Board found that the government had breached the contract by retaining the progress payment and changed the termination for default to one for convenience. The CAFC reverses ASBCA and holds that government is entitled to withhold progress payments pursuant to its common-law right of set-off. The court does, however, reject the argument that the government is entitled to withhold progress payments when a default termination is imminent.

CHARLES G. WILLIAMS CONSTRUCTION, INC. v. Thomas E. White, SECRETARY OF THE ARMY, CAFC No. 02-1462, May 05, 2003. After remand the CAFC affirms the ASBCA finding that Williams did not show that it was on standby, a necesary element to obtain Eichleay damages. (See earlier case.)

CORE CONCEPTS OF FLORIDA, INCORPORATED v. US, CAFC No. 02-5172, April 30, 2003. CAFC affirms the COFC stating that "The Court of Federal Claims correctly concluded that FPI is a NAFI whose contracts are not expressly deemed contracts with the United States under the Tucker Act and that it therefore lacked jurisdiction over Core Concepts’ complaint."

Spencer Abraham, SECRETARY OF ENERGY v. ROCKWELL INTERNATIONAL CORPORATION, CAFC No. 02-1277, April 16, 2003. The CAFC affirms the DOEBCA and holds that “...Rockwell incurred reimbursable costs when defending itself against allegations of environmental violations that never ripened into criminal charges (the Uncharged Conduct). The allowable costs include its corporate defense costs, its employee defense costs, and the costs of the database.” The Court, however, affirms on narrow grounds than did the Energy Board.

INTERNATIONAL AIR RESPONSE v.US, CAFC No. 01-5117, April 07, 2003. The court denies the government's motion for a rehearing of this case where the court had reversed COFC decision that had dismissed International Air's CDA claim as untimely. (See earlier decision.) The order denying the rehearing also discusses res judicata and collateral estoppel which the government had argued were improperly applied in the earlier decision.

P.J. DICK INCORPORATED v. Anthony J. Principi, SECRETARY OF VETERANS AFFAIRS, CAFC Nos., 02-1290, 02-1401, April 07, 2003. Both parties appeal from a decision of he VABCA. The court affirms-in-part, reverses-in-part, vacates-in-part and remands in the delay damages case. Of particular interest is Judge Michel's considerable review of the courts case law discussing the standby and other elements of proof for Eichleay damages. At the conclusion of this section of the opinion, Judge Michel summarizes as follows: "In short, a court evaluating a contractor's claim for Eichleay damages should ask the following questions: (1) was there a government-caused delay that was not concurrent with another delay caused by some other source; (2) did the contractor demonstrate that it incurred additional overhead (i.e., was the original time frame for completion extended or did the contractor satisfy the Interstate three-part test); (3) did the government CO issue a suspension or other order expressly putting the contractor on standby; (4) if not, can the contractor prove there was a delay of indefinite duration during which it could not bill substantial amounts of work on the contract and at the end of which it was required to be able to return to work on the contract at full speed and immediately; (5) can the government satisfy its burden of production showing that it was not impractical for the contractor to take on replacement work (i.e., a new contract) and thereby mitigate its damages; and (6) if the government meets its burden of production, can the contractor satisfy its burden of persuasion that it was impractical for it to obtain sufficient replacement work. Only where the above exacting requirements can be satisfied will a contractor be entitled to Eichleay damages."

WDC WEST CARTHAGE ASSOCIATES v. US, CAFC No. 02-5147, April 07, 2003. CAFC reverses COFC's decision that the reimbursement to the contractor was "limited to the depreciated value of the existing carpet before it is damaged" in this contract for the lease of off-base military housing. The CAFC concludes the "the plain language of the agreements" controls" and that the COFC erred in relying on cases in landlord-tenant law.

Donald H. Rumsfeld, SECRETARY OF DEFENSE v. APPLIED COMPANIES, INC. CAFC No. 01-1603, April 02, 2003. [The Court withdraws it's earlier decision and replaces it with this opinion to correct factual errors.]— Court affirms the ASBCA's holding that DLA had breached the requirements contract by negligently failing to inform Applied that the estimates of its cylinder requirements in the RFP were inaccurate. The Court, however, disagreed with language in the ASBCA's opinion that the breach damages may include anticipatory profits. Writing for the Court Judge Schall concluded that anticipatory profits were not available where the breach was not a failure to purchase all of the government's requirements from the contractor. Judge Dyk dissents from the majority's analysis of the anticipatory profits issue. Judge Dyk concluded his dissent by stating "The consequence of today's decision is that the government may misrepresent its requirements with impunity so long as the contractor suffers no increase in costs. That seems to me to be bad policy as well as bad law."

COAST FEDERAL BANK, FSB v. US, CAFC 02-5032, March 24, 2003. CAFC vacates its earlier opinion in this case, considers appeal en banc and issues this opinion now affirming Judge Hewitt of the COFC. Judge Gajarsa, author of the dissent in the original opinion, concludes— "In sum, we agree with the Court of Federal Claims that proper interpretation of the Agreement requires amortization of goodwill in accordance with GAAP. Section 20 of the Agreement unambiguously incorporates GAAP and GAAP require the amortization of goodwill. When the contractual language is unambiguous on its face, our inquiry ends and the plain language of the Agreement controls." Judge Michel, author of the vacated opinion, joins the majority and also writes a concurring opinion.

MCDONNELL DOUGLAS CORPORATION and GENERAL DYNAMICS CORPORATION v. US, CAFC Nos. 02-5034,-5035,-5046, March 17, 2003. The CAFC vacates in part, affirms in part and remands the COFC decision upholding the default termination of this Navy A-12 contract. Writing for the court, Judge Clevenger finds that the COFC misconstrued the CAFC's mandate and upheld the default termination without fully considering whether the default was justified under the standard set out in Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). the case is remanded for that determination. Judge Clevenger affirms the COFC opinion refusing to permit further litigation of the Contractors' superior knowledge claims because the Military and State Secrets privilege was properly invoked and justified.

KEARFOTT GUIDANCE & NAVIGATION CORPORATION v. US, CAFC No. 02-1039, February 25, 2003. The CAFC affirms the ASBCA's holding that FAR 31.205-52 “Asset valuations resulting from business combinations” applied to a claim for payment that is based on an asset write-up from a business combination that took place prior to the FAR provision’s effective date. Writing for the court Judge Bryson states: “Because we interpret FAR 31.205-52 to treat use of the purchase method of accounting as a condition or circumstance necessary for its application, we conclude that the regulation disallows costs flowing from Kearfott’s asset write-ups from the 1988 business combination. In addition, we do not believe that application of the FAR to the business combination creates a retroactivity problem, nor do we think that FAR 31.205-52 conflicts with CAS 404 or 409. For these reasons, we uphold the decision of the Armed Services Board of Contract Appeals.”

ALLEGHENY TELEDYNE INCORPORATED, TELEDYNE, INC., TELEDYNE INDUSTRIES, INC., and TELEDYNE ELECTRONIC SYSTEMS, INC., GENERAL MOTORS CORPORATION v. US, CAFC Nos. 02-5008, - 5009, -5010, -5011, January 23, 2003. The CAFC affirms Judge Firestone's opinion in all respects in this case involving “...claims regarding a pension surplus or deficit due to one of the parties as a result of a "segment closing" within the meaning of Cost Accounting Standard ("CAS") 413.”

EASTMAN KODAK COMPANY v. Donald H. Rumsfeld, SECRETARY OF DEFENSE, CAFC NO. 02-1058, January 16, 2003. CAFC affirms the ASBCA finding that Kodak’s claimed pension costs were not allocable to the cost objectives of its government contracts and the government was entitled to a refund of the reimbursed pension costs for the period 1984 through 1986. Kodak had changed its accounting practices relating to pension costs, but did not notify the government of the changes as required by its contracts which were subject to the Cost Accounting Standards. In January of 1984 the pension fund overfunded and the government continued to pay its share of the allocated pension costs as determined by Kodak. The court affirmed concluding that "at Kodak is barred from allocating its 1984 through 1986 pension plan contributions to cost objectives for that period because it neither had a valid liability to make any contribution to its overfunded pension plan nor actual liquidation of a liability for pension costs, due to overfunding. Excess contributions to a plan are by definition unnecessary, and therefore cannot be allocated to government contracts."

Donald H. Rumsfeld, SECRETARY OF DEFENSE v. UNITED TECHNOLOGIES CORPORATION, PRATT & WHITNEY, CAFC No.