Of XX Claims, Disputes, and Terminations PubKLaw Year in Review Moderator: Paul F. Khoury, Partner, Wiley Rein LLP Panelists: David M. Nadler, Partner,

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Claims, Disputes, and Terminations

PubKLaw Year in Review

Moderator: Paul F. Khoury, Partner, Wiley Rein LLP

Panelists: David M. Nadler, Partner, Dickstein Shapiro LLP

Hon. Carol Park Conroy, (Ret.) JAMS

©2015 PubKLearning. All rights reserved.

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ModeratorPaul Khoury, Partner, Wiley Rein LLP


• Paul is a partner at Wiley Rein, LLP, where has worked since he graduated from George Washington University Law School in 1986. He counsels and represents clients in all aspects of the government contracting process. He is regularly involved in litigation on behalf of government contractors, including claims and disputes under the Contract Disputes Act at the Boards of Contract Appeals and the U.S. Court of Federal Claims (COFC); representing clients in bid protests at the Government Accountability Office (GAO) and the COFC; civil false claims actions; and prime/sub disputes in federal district courts and state courts.

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Panel David M. Nadler, Partner, Dickstein Shapiro LLP


• Dave Nadler is a Partner and Government Contracts Practice Group Leader at Dickstein Shapiro LLP. His practice focuses on government audits and investigations, the False Claims Act, bid protests, contract claims and disputes, government cost, accounting and pricing issues, and compliance matters including mandatory disclosure issues. Dave is consistently ranked by Chambers USA as one of the leading government contract lawyers in the country. Prior to joining the firm, Dave was an attorney with the Naval Sea Systems Command and a Trial Attorney with the Navy Litigation Office. He is a graduate of Temple Law School.

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Panel Hon. Carol Park Conroy (Ret.), Mediator, Arbitrator & Neutral Case Evaluator, JAMS—The Resolution Experts


• Hon. Carol Park-Conroy (Ret.) has over 35 years of experience as a litigator, judge, and neutral in government contracts and commercial cases. While serving as a trial judge on the Armed Services Board of Contract Appeals (ASBCA) for 22 years, she presided over a broad range of construction and commercial disputes arising from manufacturing, service, supply, and other business contracts with the federal government. Judge Park-Conroy has extensive experience as a mediator, neutral case evaluator, and arbitrator and became one of the most sought-after dispute resolution neutrals at the ASBCA.

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Major Themes in 2015

•Fraud•Questions of Jurisdiction•Termination & Severance•Government Claims•Other Major Decisions


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Fraud Cases

• Afghanistan Trade Transportation Co., Ltd., ASBCA No. 59782, Aug. 18, 2015, 2015 WL 5146824 (bribery in connection with BPA does not taint all services performed under the BPA)

• Jasmine Int’l Trading Servs. v. United States, 120 Fed.Cl. 577 (Mar. 31, 2014) (applying the KBR III holding that contracts are only void ab initio where the fraud is the “but for” cause of award)


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Fraud Cases cont.

• Vertex Const. & Eng’g, ASBCA No. 58988, Nov. 7, 2014, 14-1 BCA ¶ 35,804 (passing government pre-award acceptability review does not excuse fraudulent contractor certifications)


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Questions of Jurisdiction

• Sikorsky Aircraft Corp. v. United States, 773 F. 3d 1315 (Fed. Cir. 2014) (statute of limitations is not jurisdictional)

• Kellogg Brown & Root Servs. Inc., ASBCA No. 58175, May 13, 2015, 15-1 BCA ¶ 35,988 (discrepancy in DCAA audit does not start the clock for FCA claim)


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Questions of Jurisdiction cont

• Palafox Street Associates, LP v. United States, 122 Fed. Cl. 18 (2015) (contractor cannot file claim at court after withdrawing case at the Boards)

• Rudolph and Sletten v. United States, 120 Fed.Cl. 137 (2015) (agency cannot extend its own deadline for a final decision)


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Termination & Severance

• TTF Inc., ASBCA No. 59511, Feb. 5, 2015, 15-1 BCA ¶ 35,883 (contractor clock for seeking claim runs from the latest notification of termination for default)

• Government Contracting Resources Inc., ASBCA No. 59162, March 12, 2015, 15-1 BCA ¶ 35,916 (agency must pay subcontractor severance under fixed-price contract)


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Termination & Severance

• H.J. Lyness Constr., Inc. v. United States, 121 Fed.Cl. 287 (May 15, 2015) (no G&A for standby costs where it has not shown the government ordered contractor to remain on standby)


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Government Claims

• Kellogg Brown & Root Servs., Inc., ASBCA No. 59557, Jan. 22, 2015, 15-1 BCA ¶ 35,865 (agency asserting government claim must write complaint in appeal of vague final decision)

• DynPort Vaccine Company, LLC, ASBCA No. 59298, Jan. 15, 2015, 15-1 BCA ¶ 35,860 (agency unilateral contract modification deemed a government claim)


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Other Major Decisions

• Amaratek, ASBCA No. 59149, 15-1 BCA ¶ 35,808 (government not entitled to prorated invoice due to government shutdown)

• Enterprise Info. Servs., Inc. v. DHS, CBCA No. 4671, 15-1 BCA ¶ 36,010 (agency cannot introduce new restrictions through a “news alert”)


Documents

Of XX Claims, Disputes, and Terminations PubKLaw Year in Review Moderator: Paul F. Khoury, Partner, Wiley Rein LLP Panelists: David M. Nadler, Partner,