Claims and Disputes | Jackson Holcomb LLP

The dispute starts earlier than you think.

Few disputes arrive without warning. Disputes are the product of a record built over time. By the time the dispute crystallizes, the most important documents may already have been written. Recognizing those events early allows you to act instead of react. Each of the events below is a precursor to a constructive change or related claim:

Informal technical direction Government personnel are issuing operational guidance, process changes, or technical instructions outside the formal modification process.
Shifting performance standards The agency is applying standards, interpretations, or expectations that differ from the solicitation, the proposal, or the SOW or PWS.
Administrative scope creep Meetings, data calls, status reports, cybersecurity documentation, and compliance requirements have significantly increased.
Government delay Slow approvals, late acceptance decisions, missing GFP, withheld credentials, unnecessary additional reviews.
Past performance pressure An agency representative has made clear, formally or informally, that current performance issues will appear in your CPAR.
Cumulative impact Dozens of small modifications, added tasks, and process changes are accumulating, none of which alone looks claim-worthy.

Claims & disputes / How we work

We understand that being right isn’t enough.

Most disputes settle. And they should. But disputes sometimes don’t settle when or how they should. Sometimes the obstacle preventing settlement is immediately obvious. In others, it doesn’t present itself until well into the litigation process. Regardless, our task is to first identify that problem. Once we know what is preventing settlement, we can develop and implement a plan to address it. The examples below illustrate how that principle applies in practice.

$1.665M COVID-impact recovery The obstacle preventing settlement in this case was immediately obvious and easy to avoid. This was a COVID-impact case, and recent decisions at the ASBCA would give agency counsel no reason at all to consider settling. The solution was filing in the Eastern District of Virginia, which allowed us to demonstrate sufficient risk to the government to settle that case for $1.665 million.
$1.74M summary judgment The obstacle was that both sides had a principled position on a legal issue which prevented the parties from reaching common ground. Settlement wasn’t possible, but the facts weren’t in dispute, so we stipulated the facts to ensure a decision on the merits and presented the case to the judge for summary judgment. We could have submitted the dispute for decision under Board Rule 11, but the parties believed we would receive a decision sooner if we proceeded by summary judgment. The judge entered summary judgment for our client for $1.74 million.
$2.8M constructive termination recovery The obstacle preventing settlement was that GSA would not consider settling a dispute arising from a land-port-of-entry project where it had issued deductive modifications removing the final 29% of work. Under a constructive termination for convenience theory, we submitted a termination for convenience settlement proposal, which the contracting officer returned without action, denying she had terminated the contract. The contracting officer similarly refused to issue a final decision on our subsequent claim. Recognizing the contracting officer was the obstacle, we filed at the Court of Federal Claims — effectively removing the agency’s settlement authority. DOJ initially denied liability but in an amended answer conceded the government had constructively terminated the contract for convenience. The government settled for approximately $2.8 million.

Claims & disputes / Our trial practice

How we will try your case.

Some cases cannot or should not be settled. They must be tried, and we will do so. These are some of the lessons we’ve learned over years of trying cases. We will apply them trying yours. They’ve worked for us.

Open aggressively (if you don’t believe in the case, you shouldn’t be here).
Credibility determinations are made in real time (nobody waits until closing argument).
Persuade the judge at trial (judges don’t rule from the bench, but they are human).
Adverse witnesses are the most persuasive (when their witness helps you, it sticks).
There is no such thing as being too prepared for trial.

How we apply these lessons.

Alutiiq Mfg. Contrs., LLC v. United States, 143 Fed. Cl. 689 (2019).

The government terminated our client’s contract for default based on alleged failure to make progress. Nearly all of the supporting facts came from a single on-site representative, who relayed them to the out-of-state contracting officer. Our position was that the contracting officer could not reasonably have concluded that we could not finish the project on time because that information was either inaccurate or dishonest. The court agreed, finding that the evidence supporting termination was tainted by dishonesty, could not be reasonably relied on, and therefore converted the termination to one for convenience.

We called the on-site representative early in our case, rather than waiting for the government, because the sooner the judge learned he had lied, the better.
The judge saw that in real time when the witness admitted on the stand that he had lied to the contracting officer.

Q. That was a lie

A. Yes, it was.

Alutiiq Mfg. Contrs. v. United States, 143 Fed. Cl. 689, 698 n.1 (2019)

With the witness’s credibility damaged, we argued under Lisbon that the contracting officer could not have formed a reasonable belief that our client would fail to finish on time. The judge agreed, finding that the witness’s “history of dishonesty further undercut the contracting officer’s ability to form an independent and reasonable belief regarding plaintiff’s ability to complete the contract on time.”

Results

Representative matters.

General

$6.1M judgment after five-week jury trial — Guam runway joint-venture dispute. Counsel for the Japanese-American joint venture that built a runway at Andersen Air Force Base, Guam, in litigation against the joint venture’s environmental consultant in the Eastern District of Pennsylvania. A five-week jury trial produced a verdict for the joint venture; the court entered an amended judgment totaling approximately $6.1 million inclusive of damages, prejudgment interest, and costs. Nippo Corp./Int’l Bridge Corp. JV v. AMEC Earth & Envt’l, Inc., 2013 U.S. Dist. LEXIS 47232 (E.D. Pa. Apr. 1, 2013); Amended Judgment Sept. 16, 2015.
$1.7M trial judgment and a Federal Circuit decision now controlling on Miller Act surety jurisdiction. Counsel for a Miller Act surety at the Court of Federal Claims. Following trial, the court entered judgment for the surety against the United States for approximately $1.7 million. The Federal Circuit reversed on jurisdictional grounds, holding the Tucker Act and the Contract Disputes Act did not confer subject-matter jurisdiction over the surety’s claim. The decision is now the controlling Federal Circuit authority on the question and frames how every Miller Act surety claim against the United States must be pleaded. Lumbermens Mut. Cas. Co. v. United States, 90 Fed. Cl. 558 (2009), rev’d, 654 F.3d 1305 (Fed. Cir. 2011).
$1.74M summary judgment — Air Force missed FAR 22.1010 union-notice deadline. Counsel for the contractor on a Tinker Air Force Base civil-engineering services contract. After a revised collective bargaining agreement took effect during the first option period, the Air Force failed to give the union the FAR 22.1010 notice more than thirty days before the option exercise date. Cross-motions for summary judgment put the legal question directly to the Board, which granted the contractor’s motion and held the missed notice entitled the contractor to an equitable adjustment of $1,744,330.37 for the resulting wage and fringe-benefit increases. Appeal of Alutiiq Commercial Enters., LLC, ASBCA No. 61503, 2020-1 B.C.A. (CCH) ¶ 37,506 (Jan. 9, 2020).
$4.8M arbitration settlement — USAID Afghan bridge construction subcontract. Counsel for an international subcontractor in arbitration against a U.S. prime on a USAID-funded bridge construction project in Afghanistan. The subcontractor recovered approximately $4.8 million in a settlement reached during the arbitration proceeding.
$2.8M recovery — GSA constructive termination on a partially completed border project. Counsel for the contractor on a GSA land-port-of-entry project where the agency stopped issuing direction, effectively halting performance partway through the work. The matter was prosecuted on a constructive termination theory and resolved for approximately $2.8 million.
$1.8M recovery — Army Corps manhole specifications and the economic-waste doctrine. Counsel for the contractor on an Army Corps of Engineers project in which the government insisted on rework whose cost dwarfed the value of any benefit to the project. The claim combined constructive change and economic-waste theories and recovered approximately $1.8 million for the contractor.
$1M settlement and a contract modification — DHS rejected invoices that followed its own pricing spreadsheet. Counsel filed at the Court of Federal Claims for a contractor on a DHS Protective Security Officer services contract. The solicitation directed offerors to a DHS-prepared spreadsheet for fully burdened labor rates; the contractor used the spreadsheet as written. DHS then rejected invoices billing supervisor hours directly — the only mathematical result the spreadsheet produced. The contractor recovered $1,000,000 of $1,100,000 in damages plus a contract modification allowing direct billing for the life of the contract.
$1.665M COVID-impact recovery — Navy ship-repair contracts. Sovereign acts had been killing contractor COVID claims across COFC and the Boards. Counsel filed four ship-repair cases directly at the Eastern District of Virginia under the CDA’s Suits in Admiralty Act carve-out for maritime contracts, 41 U.S.C. § 7102(b). The court consolidated the cases; DOJ moved to dismiss on sovereign acts grounds. Briefing on the motion demonstrated the government’s exposure, and the government settled for $1,665,000.

Terminations

Termination for default reversed at the Court of Federal Claims — Buckley AFB civil engineering services. Counsel for the contractor on a default termination of an Air Force civil-engineering services contract at Buckley Air Force Base. The Court of Federal Claims set aside the termination, and the government’s appeal was dismissed. Alutiiq Mfg. Contractors, LLC v. United States, 143 Fed. Cl. 689 (2019), appeal dismissed, 2019 U.S. App. LEXIS 40908 (Fed. Cir. Oct. 15, 2019).
Default termination converted to termination for convenience on summary judgment — foreign-language test items. Counsel for the contractor on the default termination of an Army contract for the supply of foreign-language test items. The Armed Services Board of Contract Appeals converted the termination from default to convenience on summary judgment. Appeal of Avant Assessment, LLC, ASBCA No. 58867, 2015-1 B.C.A. (CCH) ¶ 36,067 (Aug. 11, 2015).
Default termination converted to termination for convenience by negotiation — Afghanistan fuel supply. Counsel for the contractor on the default termination of a fuel-supply contract performed in Afghanistan. The termination was converted from default to convenience through negotiation during the appeal. Appeal of Sadaf Petroleum Kabul Ltd., ASBCA No. 58353, 2014 ASBCA LEXIS 67 (Mar. 12, 2014).

Claims and disputes.