Tuesday, July 31, 2012


A few days ago, Armed Services Board of Contract Appeals (ASBCA) Judge Elizabeth Tunks announced in the last paragraph of her opinion:
We conclude that the government breached the contract when it did not permit MCC to compete for the two task orders.  Appellant's motion for summary judgment is granted.  The government's motion for summary judgment is denied.  The appeal is sustained and remanded to the parties for determination of quantum.
The contract in issue referenced a statute which required, in certain circumstances, subsequent contracting opportunities be set aside for exclusive small business participation.  What did the term "subsequent contracting opportunities" mean? Judge Tunks agreed with the contractor's interpretation that the phrase meant subsequent solicitation of a contract (MCC was not a small business), not the government's view that the phrase referred to a request for a task order proposal. Judge Tunks decided the government breached the contract.

The case went off on cross motions for summary judgment.  That is, each side moved the Board for disposition on the merits based on its interpretation of the contract.  The material facts were undisputed as they must be to be successful on a motion for summary judgment.

When a dispositive motion is granted, the appeal is sustained (contractor wins). Since the Board insists on trying entitlement separately (there are limited exceptions), winning means the case is remanded to the parties (contracting officer and contractor) to negotiate damages or "quantum".  Failing settlement, the case returns to the ASBCA for a determination of quantum by the Board.

bill@spriggslawgroup.com     www.spriggslawgroup.com

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