• R.D. Lieberman,Consultant

Don't Make a Fatal Mistake At the Boards of Contract Appeal

Recently, a contractor who had submitted a claim to its contracting officer, made a fatal procedural mistake when asking the Civilian Board for summary judgment. CSI Aviation, Inc. v. Dept of Homeland Security, CBCA 6292, Feb. 25, 2020.

As readers well know, a motion for summary judgment is a request for judgment as a matter of law based on undisputed material facts. CSI moved for summary judgment, and included a “statement of undisputed material facts” that was required by the Board’s rules. However, that statement of undisputed material facts contained only two paragraphs and cited only the contracting officer’s decision on CSI’s certified claim.

The Civilian Board’s (“CBCA”) Rule 8(f)(1) requires a movant to “cite appeal file exhibits, admissions in pleadings and/or evidence filed with the motion.” Note: The Armed Services Board of Contract Appeals (“ASBCA”) has a similar rule 7(c) which requires that the movant for summary judgment “cite to the record and attach any additional evidence upon which it relies (e.g. affidavits, declarations, excerpts from depositions, answers to interrogatories, admissions.)”

In the CSI case, the CBCA denied the motion for summary judgment because Boards decide contracts claims de novo, 41 U.S.C. §§ 7104(b)(4), 7105(e)(2), and the Board cannot treat statements in contracting officer’s decisions as evidence. See Wilner v. United States, 24 F. 3d 1397, 1402 (Fed. Cir. 1994) en banc, (“Once an action is brought following a contracting officer’s final decision, the parties start in court or before the board with a clean slate.”). As a result, the appellant CSI offered the Board no basis to find that it was entitled to judgment as a matter of law based on undisputed facts.

Takeaway. The failure to include the proper factual basis was fatal to CSI’s motion. Appellants must fully adhere to the Board Rules. As an appellant you must furnish the facts necessary for your motions—you cannot rely on anything stated or implied by the contracting officer.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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