|
|
CDA Inapplicable to Claim Alleging Agreement to Facilitate Payment
A claim seeking payment for military support services was not dismissed by
the Court of Federal Claims, because the Contract Disputes Act requirement for
obtaining a contracting officer's final decision did not apply to the alleged
implied-in-fact agreement to facilitate payment from a third-party government.
The contractor sought to recover payments due on a military base camp project in
Iraq. The contractor alleged that, at the government's urging, it entered into
an express written contract with the Iraqi government so that Iraqi Ministry of
Defense funds could be used to pay for contract performance. According to the
contractor, it was reluctant to submit a proposal but the United States
government promised to assist it if any problems were to arise in obtaining
payment from the Iraqi government. Specifically, the contractor alleged the
government breached an implied-in-fact contract to facilitate payment from the
Iraqi government for the contractor's performance of the express contract. The
government moved to dismiss, arguing the contractor could not sue in the CFC
under the CDA unless it first obtained a final decision from a contracting
officer.
Claim Mischaracterized
However, the allegation fell under the court's Tucker Act jurisdiction and not
the CDA. The Tucker Act grants the CFC broad jurisdiction over "express or
implied contract(s) with the United States" (28 USC 1491(a)(1)). The CDA,
in contrast, applies only to express or implied contracts for: the procurement
of property, other than real property in being; the procurement of services; the
procurement of construction, alteration, repair or maintenance of real property;
or the disposal of personal property (41 USC 602(a)(1)-(4)). The government
mischaracterized the nature of the contractor's claim, which sought relief based
on an implied-in-fact contract theory that the government agreed to facilitate
and obtain payment from the Iraqi government in exchange for the contractor's
performance of the express contract. Under the alleged arrangement, the CDA did
not apply because the implied contract called for services provided by the
government but from which the government would not directly benefit. Moreover,
the contractor alleged the breach of an agreement to facilitate and obtain
payment from a third party rather than asking for the government to make payment
itself. The CDA grants jurisdiction over contracts for the procurement of
services but not for the provision of services. The contractor, therefore, was
not required to obtain a contracting officer's final decision before seeking
redress in court. (Laudes Corp., FedCl, 53
CCF ¶79,083)
(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )
|
|
|
|