Recovered Lost Profits using Failure to Order Theory

We recovered  the profit our client would have made but for the agency’s wrongful failure to place orders with the client.

Our client filed rates for shipping goods with the Military Surface Deployment and Distribution Command (SDDC). Its rates were accepted and certified by both SDDC and the transportation office at Fort McPherson, Georgia. The client was ready, willing, and able to perform, but SDDC placed no orders. 

 We alleged that a contract was formed whereby SDDC agreed to tender shipments to our client and our client agreed to accept shipments tendered to it according to the terms of the rate filing solicitation. We further alleged that SDDC did not honor the terms of the contract because the Army failed to award shipments from Fort McPherson to our client. Because the Army failed to award shipments, our client lost profits it would otherwise have made. 

 The Army issued a final decision denying our client’s claim, and we appealed that denial to the ASBCA. The government filed a motion to dismiss, arguing that no contract existed. The Board denied that motion. The government moved for reconsideration, which was also denied. The parties thereafter engaged in settlement discussions which resulted in a payment of lost profits to our client.

Lead Attorney
Mark Jackson
Mark Jackson
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Recovered Lost Profits using Failure to Order Theory