Lockheed Martin Aeronautics Company ( 2021 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Lockheed Martin Aeronautics Company ) ASBCA No. 62209
)
Under Contract No. FA8625-07-C-6471 )
APPEARANCES FOR THE APPELLANT: Stephen J. McBrady, Esq.
Skye Mathieson, Esq.
J. Chris Haile, Esq.
Michelle D. Coleman, Esq.
John Nakoneczny, Esq.
Crowell & Moring LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney
Caryl A. Potter III, Esq.
Lawrence M. Anderson, Esq.
Danielle A. Runyan, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PAGE ON APPELLANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT ON “LACHES,” OR IN THE
ALTERNATIVE TO STRIKE THE GOVERNMENT’S AFFIRMATIVE DEFENSE
The subject contract required LMA to upgrade 49 C-5 Galaxy aircraft. The
parties have filed a series of cross-motions for summary judgment, which largely focus
upon the timeliness of the underlying October 15, 2018 claim in the amount of
$143,529,290. This claim was asserted by Lockheed Martin Aeronautics Company
(LMA, appellant, or contractor) against the Air Force (USAF, Air Force, government,
or respondent) for allegedly excessive “over & above” (O&A) work that resulted in
greater costs and a cumulative lack of productivity. LMA also moved for partial
summary judgment (or in the alternative to strike) the government’s affirmative
defense of laches (app. mot.). We grant appellant’s motion for partial summary
judgment on the issue of whether laches remains an allowable affirmative defense. 1
1 Because we grant partial summary judgment on this issue, it is unnecessary that we
address appellant’s alternative motion to strike the government’s assertion of
laches as an affirmative defense.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
On April 30, 2007, the Air Force awarded Contract No. FA8625-07-C-6471 for
the “Reliability Enhancement and ReEngining Program” (RERP) to LMA. The
contractor was to provide a set of upgrades to specified C-5 aircraft. This included the
installation of new CF6-80C2 commercial engines and other enhancements to
subsystems and major components. This work was done under mostly fixed-price
contract line items (CLINs). (R4, tab 3 at 1-13, 28, 73-75)
On October 15, 2018, pursuant to the Contract Disputes Act of 1978, 41 U.S.C.
§§ 7101-7109 (CDA) and Federal Acquisition Regulation (FAR) 52.233-1
DISPUTES, LMA submitted a certified claim in the amount of $143,529,290 and
requested a final decision (COFD) from a government contracting officer (CO) (R4,
tab 2 at 2-3). 2 Appellant’s claim alleges that “excessive O&A work changes resulted
in an additional, constructive change in the form of cumulative impacts to the
performance of the fixed-price RERP efforts” (id. at 21). LMA “calculates a total of
428,482 production hours attributable to the cumulative disruptive impacts of O&A
changes” in pricing its claim (id. at 25).
By correspondence dated December 7, 2018, the CO declined to issue a COFD
on LMA’s claim of October 15, 2018 (R4, tab 1).
On October 3, 2019, the contractor appealed to the ASBCA on the basis of the
government’s “deemed denial of its certified claim . . . submitted on 15 October
2018.” The Board on October 7, 2019 issued its “Notice of Docketing” and designated
the appeal as ASBCA No. 62209.
The government’s answer of December 3, 2019 asserted the affirmative defense
of laches (answer at 43).
DECISION
The Parties’ Positions
1. The Appellant
On August 17, 2020, LMA filed “Appellant’s Motion for Partial Summary
Judgment on ‘Laches,’ or in the Alternative, to Strike Respondent’s Affirmative
Defense.” LMA argues there are no disputed material facts, and that it is entitled to
2 Where pertinent, the Board adopts the pagination affixed by the parties as part of the
Rule 4 file submission.
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favorable judgment as a matter of law. In the alternative, appellant seeks to strike the
government’s affirmative defense of laches. (App. mot. at 1, 4, 7)
LMA contends that although “[l]aches is an equitable doctrine that is
appropriate, in some circumstances, where there is no applicable statute of
limitations,” this defense is unallowable in this appeal. Appellant maintains that
“Laches is a ‘gap-filling’ doctrine that may be applied when there is no statute of
limitations, but it is not a cognizable affirmative defense to claims governed by a
Congressionally-enacted statute of limitations.” The contractor says that because its
claim was asserted under the CDA and “Congress specifically enacted a six-year
statute of limitations for claims” for this act, this provision “applies to Lockheed
Martin’s claim, and there is no ‘gap’ for the doctrine of laches to fill.” (App. mot. at 2)
Appellant’s argument relies heavily upon the opinion of the United States
Supreme Court in SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC,
137 S. Ct. 954 (2017). LMA asserts that this decision “clarified that the equitable
defense of laches cannot be invoked against a legal claim when Congress has
statutorily prescribed a reasonable limitations period for bringing such claims.” (App.
mot. at 4) Appellant points out that Congress amended the CDA by adding the
six-year statute of limitations through the Federal Acquisition Streamlining Act of
1994. This amendment applies to all contracts awarded on or after October 1, 1995
and the contract between the government and LMA was awarded on April 30, 2007,
bringing it within the six-year submission limitation. Appellant asserts that, in
accordance with SCA Hygiene, the effect of the CDA’s Congressionally-imposed
statute of limitations is that the affirmative defense of laches is unavailable against
LMA’s claim. (App. mot. at 4-6) The contractor contends that, “although SCA
Hygiene was not a CDA case, the rule against laches [articulated there] is broadly
applicable to all legal claims that are subject to a Congressionally-enacted statute of
limitations” (id. at 6).
2. The Government
The government does not raise any disputed material facts in opposing the
motion (gov’t opp’n at 2). It primarily argues that no tribunal has rendered a decision
holding that the CDA bars laches as an affirmative defense to claims made under that
Act. The government notes that SCA Hygiene was not a CDA case, and contends that
the Board should not extend the holding in that case to encompass that statute. It
asserts that ASBCA precedent, particularly in Anis Avasta Constr. Co., ASBCA
No. 61107, 18-1 BCA ¶ 37,036, is in agreement that the affirmative defense of laches
applies to CDA claims. (Gov’t opp’n at 4-5)
The government observes that the Board in Anis Avasta relied in part upon
S.E.R., Jobs for Progress, Inc. v. United States, 759 F. 2d 1 (Fed. Cir. 1985) (see 18-1
3
BCA ¶ 37,036 at 180,317). The government says that S.E.R. stands for the proposition
that laches remains an appropriate affirmative defense if it is necessary for the tribunal
to prevent the injustice of a prejudicially-tardy claim, even where the suit is subject to
a statute of limitations. The government quotes from this decision: “laches cannot
ordinarily be invoked as a defense to legal claims where a statute of limitations is
normally available to preclude the recovery on stale claims, unless the offended party
has been unmistakably prejudiced by the delay in assertion of the claim.’” (Gov’t
opp’n at 3 n.1 (citing S.E.R., 759 F. 2d at 8-9) (emphasis in original))
The government also cites FAR 33.203(c) (Applicability) to buttress its position
that the CDA’s six-year claim submission requirement was not intended to preclude
the equitable defense of laches. It reasons that this FAR provision “preserves all
contract claims and defenses of the parties that administrative agency Boards and
contracting officers had the authority to consider and decide” prior to the enactment
and/or amendment of the CDA, “including the equitable defense of laches against
contractor ‘equitable adjustment’ claims under contract clauses.” (Gov’t opp’n at 5)
DISCUSSION
1. The Standard of Review for Summary Judgment
Summary judgment is a salutary measure for resolving litigation where there
are no disputed material facts and the movant has proven that it is entitled to judgment
as a matter of law. Mingus Constructors, Inc. v. United States, 812 F. 2d 1387, 1390
(Fed. Cir. 1987); Federal Rules of Civil Procedure (FED. R. CIV. P.) 56(a). The
Board’s duty in evaluating such motions is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Our assessment
“necessarily implicates the substantive evidentiary standard of proof that would apply
at the trial on the merits” (id. at 252), and we look to FED. R. CIV. P. 56 for guidance in
deciding summary judgment motions (Board Rule 7(c)(2)). The “facts must be viewed
in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute
as to those facts.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)). “Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation omitted).
The government as proponent here bears the burden of proving laches as an
affirmative defense. See, e.g., Cornetta v. United States, 851 F. 2d 1372, 1380 (Fed.
Cir. 1988) (“the burden of proving prejudice rests with the defendant”). For purposes
of the motion, it must demonstrate specific facts showing that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citing FED. R. CIV. P.
4
56(e)). As nonmovant, the government must “make a showing sufficient to establish
the existence of an element essential to [its] case, and on which [it] will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322. The government cannot rest upon
mere denials or conclusory statements, as these are insufficient to withstand summary
judgment. Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F. 2d
831, 836 (Fed. Cir. 1984).
2. Affirmative Defenses to a Claim
“Affirmative defenses” can protect a defending party from the consequences of
its actions, even if everything alleged in the claim is true. This remedy is grounded in
the notion that equity should be available to avoid suit or ensure a fair result to the one
against whom the action was brought, even if the law might otherwise dictate a
different result. See, e.g., Parkinson v. Dep’t of Justice, 874 F.3d 710, 724 n.9 (Fed.
Cir. 2017); 3 also Wisconsin v. Duluth, 96 U.S. 379, 383 (1877) (“if [the affirmative
defense] is found to be true in point of act, it will preclude any such action by this
court as the plaintiff has prayed for.”).
The Board has said:
The Black’s Law Dictionary defines an “affirmative
defense” as “A response to a plaintiff’s claim which
attacks the plaintiff’s legal right to bring an action, as
opposed to attacking the truth of claim.” It further explains
that, “In pleading, matter asserted by defendant which,
assuming the complaint to be true, constitutes a defense to
it.” Black’s Law Dictionary 60 (6th ed. 1990).
United Technologies Corp., Pratt & Whitney Group, Gov’t Engines and Space
Propulsion, ASBCA No. 46880 et al., 95-1 BCA ¶ 27,538 at 137,230-31.
3 This note reads in full:
See, e.g., Affirmative Defense, under Defense, Black’s Law
Dictionary (10th ed. 2014) (“A defendant’s assertion of
facts and argument that, if true, will defeat the plaintiff’s or
prosecution’s claim, even if all the allegations in the
complaint are true…. Also termed plea in avoidance; plea
in justification. Cf. negative defense; confession and
avoidance.”).
Parkinson, 874 F.3d at 724 n.9.
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Board Rule 6(b), which sets forth requirements for the government’s pleadings,
calls for the answer to include any affirmative defenses. “Although the Federal Rules
of Civil Procedure do not apply to the Board as an administrative tribunal, we can look
to them for guidance, particularly in areas our rules do not specifically address.” Thai
Hai, ASBCA No. 53375, 02-2 BCA ¶ 31,971 at 157,920. Thus, we look to FED. R.
CIV. P. 8(c)(1), which provides that affirmative defenses (including laches) must be
stated in a party’s response to a pleading. 4 See 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1270 (3rd ed. (2021) (discussing FED. R.
CIV. P. 8 and affirmative defenses in general)).
3. The Equitable Doctrine of “Laches” as an Affirmative Defense
The Supreme Court has described laches as “a defense developed by courts of
equity” to protect defendants against “unreasonable, prejudicial delay in commencing
suit.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 667-68 (2014). The
theory of laches, which is derived from the concept of equity and is not predicated
upon a statutory time limit, allows a tribunal to dismiss a suit where a party’s:
‘lack of diligence is wholly unexcused; and both the nature
of the claim and the situation of the parties was such as to
call for diligence.’ Benedict v. City of New York, 250 U.S.
321, 328, 39 S. Ct. 476, 478, 63 L.Ed. 1005 [(1919)]. A
suit in equity may fail though ‘not barred by the act of
limitations.’ McKnight v. Taylor, [42 U.S. 161, 168
(1843)]; Alsop v. Riker, 155 U.S. 448, 15 S. Ct. 162, 39
L.Ed. 218 [1894)].
Equity eschews mechanical rules; it depends on flexibility.
Equity has acted on the principle that ‘laches is not, like
limitation, a mere matter of time; but principally a question
of the inequity of permitting the claim to be enforced, —
an inequity founded upon some change in the condition or
relations of the property or the parties.
Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (further citations omitted).
4 FED. R. CIV. P. 8(c)(1) requires that a party responding to a pleading must
“affirmatively state any avoidance or affirmative defense, including: accord and
satisfaction; arbitration and award; assumption of risk; contributory negligence;
duress; estoppel; failure of consideration; fraud; illegality; injury by fellow
servant; laches; license; payment; release; res judicata; statute of frauds; statute
of limitations; and waiver.”
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Prevailing on the defense of laches requires its proponent to furnish “‘proof of
(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice
to the party asserting the defense.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
121-22 (2002) (quoting Kansas v. Colorado, 514 U.S. 673, 687 (1995) (further citation
omitted)).
The ASBCA has held:
Laches is an equitable doctrine that denies relief to “one
who has unreasonably and inexcusably delayed in the
assertion of a claim.” S.E.R., Jobs for Progress, Inc. v.
United States, 759 F.2d 1, 5 (Fed. Cir. 1985) (quoting
Brundage v. United States, 504 F.2d 1382, 1384, 205 Ct.
Cl. 502 (Ct. Cl. 1974).
The Boeing Co., ASBCA No. 54853, 12-1 BCA ¶ 35,054 at 172,197.
4. The Statute of Limitations under the Contract Disputes Act
Congress added the six-year statute of limitations to the CDA by the Federal
Acquisition Streamlining Act of 1994 (FASA) (Pub. L. No. 103-355, § 2351(a),
108 Stat. 3243, 3322 (1994)). FASA § 10001(b)(2)(A)(2) provides that amendments:
[M]ade by this Act shall apply to contracts in effect on
October 1, 1995 “to the extent and in the manner
prescribed in the final regulations . . . .” 108 Stat. 3404.
The final regulations at FAR 33.206(a) state in relevant
part: “This 6-year time period does not apply to contracts
awarded prior to October 1, 1995.”
JRS Management, ASBCA No. 57238, 10-2 BCA ¶ 34,571 at 170,452.
After examining the legislative history of 41 U.S.C. § 7103(a)(4)(A), the
Federal Circuit concluded that the CDA’s statute of limitations was not a jurisdictional
requirement. Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1322 (Fed. Cir.
2014 (Ҥ 7103 does not have any special characteristic that would warrant making an
exception to the general rule that filing deadlines are not jurisdictional. We conclude
that § 7103 is not jurisdictional . . . .”). The court reviewed the requirement that
contractor claims must be brought within six years of the accrual of a claim:
Section 7103(a)(4)(A) states that “[e]ach claim by a
contractor against the Federal Government relating to a
contract and each claim by the Federal Government against
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a contractor relating to a contract shall be submitted within
6 years after the accrual of the claim.” 41 U.S.C.
§ 7103(a)(4)(A). A claim accrues as of “the date when all
events, that fix the alleged liability of either the
Government or the contractor and permit assertion of the
claim, were known or should have been known. For
liability to be fixed, some injury must have occurred.
However, monetary damages need not have been
incurred.” 48 C.F.R. § 33.201.
Sikorsky, 773 F.3d at 1320.
The CDA statute of limitations continues as a time bar to claims that were not
presented to the CO within the defined period. Environmental Safety Consultants,
Inc., ASBCA No. 58343, 14-1 BCA ¶ 35,681 at 174,666. It remains an affirmative
defense before the Board (see, e.g., Kamaludin Slyman CSC, ASBCA No. 62006 et al.,
slip. op. at 12 (April 29, 2021); see also FED. R. CIV. P. 8(c)(1)).
Analysis of Appellant’s Motion
1. The Substance of the Government’s Affirmative Defense of Laches
The government’s answer details its reasons for seeking to deny LMA the
complete six years set forth in 41 U.S.C. § 7103(a)(4)(A) to submit its claim. The
government argues that it would be unfairly prejudiced by allowing appellant the full
statutory period, and justifies the Board’s imposition of a shorter, undefined interval as
follows:
Appellant’s unreasonable delay in making its “cumulative
impact” claim(s) with respect to unidentified “thousands of
MDRs [Manufacturing Deficiency Reports]” and hundreds
of thousands of unidentified hours of “O&A work” (e.g.,
Complaint paragraphs 51, 58, 67 and 134), with the
obviously incurable prejudice to Respondent to be able to
defend against so many “thousands” of individual
MDRs/O&A hours and their alleged “impact on
fixed-price CLINs for 21 aircraft in Lots 3-5,” is a
textbook case of laches precluding Appellant’s claim(s) as
Respondent asserted in its answer to Complaint paragraph
126 above.
(Answer at 43)
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2. The United States Supreme Court’s Decisions in SCA Hygiene and Petrella
Preclude the Affirmative Defense of Laches in CDA Appeals
The government’s argument that laches remains a viable affirmative defense is
unpersuasive; it ignores the breadth of the Supreme Court’s decisions regarding the
relationship between federal statutes of limitation and the common law affirmative
defense of laches. The government’s contention that the holding in SCA Hygiene is
not relevant to a CDA claim because that case arose from a Patent Act matter
disregards the deliberately broad language of this decision. It also fails to recognize
the Court’s repeated endorsement of Petrella, 572 U.S. 663 (2014), which it favorably
relied upon throughout (see, e.g., SCA Hygiene, 137 S. Ct. at 959-64). In responding
to a challenge over whether the ruling in Petrella (which dealt with the Copyright Act)
extended to a Patent Act issue in SCA Hygiene, the Court in the latter decision
reiterated the general principle that laches is not an available defense where there is a
legislatively-enacted statute of limitations:
[The Court held in Petrella] that laches cannot defeat a
damages claim brought within the period prescribed by the
Copyright Act’s statute of limitations. Petrella, 572 U.S.,
at ----, 135 S. Ct., at 1972-1975. And in so holding, we
spoke in broad terms. See id., at --- - ---, 134 S. Ct.
at 1974 (“[I]n the face of a statute of limitations enacted by
Congress, laches cannot be invoked to bar legal relief.”)
SCA Hygiene, 137 S. Ct. at 960 (emphasis added).
The Court in SCA Hygiene also emphasized the separate functions of judges
and the legislative branch, just as it had in Petrella (see, e.g., SCA Hygiene, 137 S. Ct.
at 960-61). It warned that it is inappropriate for a judge to allow an equitable doctrine
such as laches to limit a party’s rights where that party complied with a
Congressionally-enacted statute of limitations. The Court acknowledged that laches (a
judge-made doctrine that arose from equity) and statutes of limitation (enactments of
the legislature explicitly circumscribing the period in which a claim can be brought)
are both intended to shield those defending against untimely claims. Id.Although the legislative and judicial approaches share the same goal of
discouraging stale or overly-late claims, the rubric under which timeliness is
established is very dissimilar. Chief among the differences is that tribunals rely on the
doctrine of laches to decide on a case-by-case basis whether a particular claim was
brought within a reasonable period, whereas legislatures adopt firm temporal limits for
every claim brought under a specific law. Tribunals consider whether the party
asserting laches was unjustly or unreasonably prejudiced by the timing of the claim,
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whereas this is not a consideration in assessing whether a statute of limitations has
been met.
The Court in SCA Hygiene warned against allowing judges to usurp
Congressional power by permitting parties continued reliance on laches where the
controlling statute set a time limit:
The enactment of a statute of limitations necessarily
reflects a congressional decision that the timeliness of
covered claims is better judged on the basis of a generally
hard and fast rule rather than the sort of case-specific
judicial determination that occurs when a laches defense is
asserted. Therefore, applying laches within a limitations
period specified by Congress would give judges a
“legislation-overriding” role that is beyond the Judiciary’s
power. [Petrella], 134 S. Ct. at 1974. As we stressed in
Petrella, “courts are not at liberty to jettison Congress’
judgment on the timeliness of suit.” Id., at ----, 134 S. Ct.,
at 1967.
SCA Hygiene, 137 S. Ct. at 960.
Although the government correctly observes that the United States Court of
Appeals for the Federal Circuit, the ASBCA’s appellate body, has not applied SCA
Hygiene to the CDA or otherwise ruled that laches is not available as an affirmative
defense under that act, it is unnecessary that the Board wait for it to do so before ruling
on this motion. While it would be preferable if the Federal Circuit had been given the
opportunity to previously consider this issue, this Board is ultimately subject to the
precedent of the United States Supreme Court and will adhere to its decisions.
We note that the Federal Circuit favorably applied the holdings in SCA Hygiene
and Petrella in litigation outside the Copyright Act and the Patent Act. 5 In Nat’l Org.
of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 981 F.3d 1360 (Fed. Cir.
2020) (NOVA), the court held that an advocacy group’s “challenge is timely under the
six-year statute of limitations provided by 28 U.S.C. § 2401(a) and that Federal Circuit
Rule 15(f), establishing a 60-day time limit for bringing [a petition under 38 U.S.C.
5 But cf. Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), a post-award
bid protest in which the dissent regarded the “Blue & Gold ‘Waiver Rule’”
cited by the majority as “undermined by the reasoning in SCA Hygiene.” Inerso
Corp., 961 F.3d 1352-53. It was Judge Reyna’s view that this “rule runs afoul
of the separation of powers principle articulated” by the Supreme Court. Id.
at 1353.
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§ 502] is invalid.” Id. at 1365. The Federal Circuit concluded that local court rules
cannot “either expand[] or limit[] the time to file a claim where a statutory time limit
applies.” Id. at 1384. The court recognized its power under 28 U.S.C. § 2071(a) “to
promulgate rules for conducting court business,” but said that “‘[s]uch rules shall be
consistent with Acts of Congress.’” Id. (quoting 28 U.S.C. § 2071(a). It found
“unavailing” the argument that the holdings in SCA Hygiene and Petrella should be
distinguished “on the ground that they dealt with statutory time limits specific to a
particular area of the law.” Id. at 1385. The court affirmed that “Congress ‘kn[o]w[s]
how to impose’ a more limited statutory time limit on challenges to agency action
‘when it [chooses] to do so.’” Id. (citations omitted).
We find the government’s reliance upon decisions involving laches that were
rendered by various tribunals (but pre-date SCA Hygiene) is misplaced, as these do not
reflect the current status of the law. Nor are we bound by Anis Avasta, 18-1 BCA
¶ 37,036 or other ASBCA decisions discussing the doctrine of laches that were
rendered after the issuance of SCA Hygiene. The parties did not argue nor did the
Board consider the effect of that decision (or Petrella) when it ruled in those appeals.
3. FAR 33.203(c), Does Not Preserve Laches as an Affirmative Defense in an
Appeal under the Contract Disputes Act
We are not convinced by the government’s unsupported argument that
FAR 33.203(c), (Applicability) somehow overrides decisions of the Supreme Court or
the dictates of Congress in 41 U.S.C. § 7103(a)(4)(A), or preserves the affirmative
defense of laches; see, e.g., FED. R. CIV. P. 56(e) Failing to Properly Support or
Address a Fact.
FAR 33.203(c) (Applicability) provides:
(c) This part applies to all disputes with respect to
contracting officer decisions on matters “arising under” or
“relating to” a contract. Agency Boards of Contract
Appeals (BCAs) authorized under the Disputes statute
continue to have all of the authority they possessed before
the Disputes statute with respect to disputes arising under a
contract, as well as authority to decide disputes relating to
a contract. The clause at 52.233-1, Disputes, recognizes
the “all disputes” authority established by the Disputes
statute and states certain requirements and limitations of
the Disputes statute for the guidance of contractors and
contracting agencies. The clause is not intended to affect
the rights and obligations of the parties as provided by the
Disputes statute or to constrain the authority of the
11
statutory agency BCAs in the handling and deciding of
contractor appeals under the Disputes statute.
48 C.F.R. 33.203(c) (underlining added)
We do not read the FAR’s authorization of Boards of Contract Appeals to
“have all of the authority they possessed before the Disputes statute with respect to
disputes arising under a contract, as well as authority to decide disputes relating to a
contract” as the wide-ranging grant of power espoused by the government. Nothing in
FAR 33.203(c) preserves the pre-FASA affirmative defense of laches, and the
government does not substantiate that the regulation supersedes the holdings in SCA
Hygiene and Petrella that laches is not a cognizable defense where the statute of
limitations is satisfied.
The government’s reliance on this regulation to thwart or override rulings of the
Supreme Court is incorrect as a matter of law, and it has not established a disputed
material fact that we would be required to construe in its favor (see “The Standard for
Review for Motions for Summary Judgment,” supra). The government’s “conclusory
statements or completely insupportable, specious or conflicting explanations or
excuses will not suffice to raise a genuine issue of material fact.” Range Tech. Corp.,
ASBCA No. 51953 et al., 04-1 BCA ¶ 32,456 at 160,545 (quoting Paragon Podiatry
Lab., Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1190 (Fed. Cir. 1993)).
CONCLUSION
Appellant has demonstrated there are no disputed issues of material fact, and
that it is entitled to judgment as a matter of law. Where “Congress explicitly puts a
limit upon the time for enforcing a right which it created, there is an end of the matter.
The Congressional statute of limitation is definitive.” Holmberg, 327 U.S. at 395. We
grant LMA’s motion for partial summary judgment on the issue of laches, which is not
available to the government as an affirmative defense against the CDA claim brought
by the contractor.
Dated: June 22, 2021
REBA PAGE
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 62209, Appeal of
Lockheed Martin Aeronautics Company, rendered in conformance with the Board’s
Charter.
Dated: June 22, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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