J-Way Southern, Inc. v. United States Army Corps of Engineers

United States Court of Appeals
For the First Circuit
No. 21-1144
J-WAY SOUTHERN, INC.,
Plaintiff, Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Thompson, Lipez, and Kayatta,
Circuit Judges.
Ian J. Pinta, with whom Christopher Weld, Jr. and Todd & Weld
LLP were on brief, for appellant.
Anne Murphy, Attorney, Appellate Staff, Civil Division, with
whom Nathaniel R. Mendell, Acting United States Attorney, Brian M.
Boynton, Acting Assistant Attorney General, and Charles W.
Scarborough, Attorney, Appellate Staff, Civil Division, were on
brief, for appellee.
May 10, 2022
THOMPSON, Circuit Judge. Today, we write primarily for
the parties named in this case's caption, and we therefore assume
their familiarity with the facts and travel, as well as the issues
raised and arguments presented. This allows us to get straight to
it, offering the basics and some supplemental information as needed
along the way.
This matter arises out of a terminated June 2015 contract
for dredging waterways in Menemsha Harbor, Martha's Vineyard --
i.e., moving "sandy material from the channels and anchorage of
. . . Menemsha Creek" to Lobsterville Beach via a temporary
hydraulic pipeline. J-Way Southern ("J-Way") got this gig after
it was the lowest bidder on a United States Army Corps of Engineers
("USACE") solicitation for the dredging work. But J-Way's
performance, in USACE's view, was deficient: J-Way did not
complete the work within the timeframe set forth in the contract.
There was some procedural scuffling regarding J-Way's default on
the contract, and, ultimately, USACE terminated the contract.1 J-
1 A first termination for default was rescinded by USACE after
J-Way argued in an administrative claim under the Contract Disputes
Act ("CDA") that its delay was excusable, and that was followed by
an agreement between J-Way and USACE to proceed. But J-Way again
experienced delays and USACE determined the failure to perform was
not excusable, and it therefore issued a second termination notice
for default. USACE made a demand upon J-Way's performance bond to
get the work done, and, thereafter, USACE and J-Way's surety
executed a Takeover Agreement that led to a new contractor being
procured by the surety. For its part, J-Way eventually (two-plus
years after the default termination) submitted another
administrative claim under the CDA, arguing the second default
- 2 -
Way filed suit, alleging improper termination and breach of the
contract by USACE. In response, USACE moved to dismiss for failure
to state a claim. The district court granted USACE's dismissal
motion, ruling (as is relevant to our decision today) that J-Way's
claims were time-barred. J-Way S., Inc. v. United States, 516 F.
Supp. 3d 84, 94 (D. Mass. 2021). J-Way appeals.
After careful de novo review (see, e.g., N.R. by &
through S.R. v. Raytheon Co., 24 F.4th 740, 746 (1st Cir. 2022))
of the record, the parties' appellate submissions, and the
applicable law, we spy no basis to disturb the district court's
decision, which is comprehensive and well-reasoned. And "when
lower courts have supportably found the facts, applied the
appropriate legal standards, articulated their reasoning clearly,
and reached a correct result, a reviewing court ought not to write
at length merely to hear its own words resonate." deBenedictis v.
Brady-Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014);
see also Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 2 (1st
Cir. 2004) ("[W]hen a trial court accurately sizes up a case,
applies the law faultlessly to the discerned facts, decides the
matter, and articulates a convincing rationale for the decision,
there is no need for a reviewing court to wax longiloquent.").
termination was unlawful. No action was taken by USACE on that
claim because it understood the claim to be time-barred. That
second default termination is the impetus for the instant
litigation.
- 3 -
This case fits that mold. We thus affirm substantially on the
basis of Judge Saris' thorough decision.
Before we reach our brief discussion of the arguments
advanced on this appeal, though, we must pause to have a look at
a jurisdictional issue that was much debated below. That debate
hasn't been revisited before us on appeal, but "[t]his Court has
an independent duty to assess the existence of subject matter
jurisdiction." Almeida-León v. WM Cap. Mgmt., Inc., 993 F.3d 1,
11 n.13 (1st Cir. 2021) (citing Espinal-Domínguez v. Puerto Rico,
352 F.3d 490, 495 (1st Cir. 2003)).
Jurisdiction
When J-Way filed its complaint in district court, it
asserted admiralty jurisdiction because the parties' dispute arose
out of a maritime contract under the CDA, 41 U.S.C. § 7102(d).
Disagreeing with that jurisdictional premise, the government moved
to dismiss or transfer for lack of subject matter jurisdiction,
arguing, inter alia, that "[t]he contract is a standard Army Corps
construction contract, . . . and disputes arising from such
contracts have been resolved at specialty government contract
appeal boards or in the U.S. Court of Federal Claims for over 150
years." According to the government, its contract with J-Way was
"not a maritime contract in whole or in part" -- the contract
contemplated "digging earth, not [water] navigation," and thus was
"a standard federal construction contract." Indeed, the
- 4 -
government, citing a history of dredging-contract-dispute cases
being heard in the Court of Federal Claims, insisted that court,
as well as agency boards, have always exercised jurisdiction over
matters such as this. J-Way retorted that the dispute did not
arise from a construction contract at all; rather, the dispute
clearly had its genesis in a maritime contract, with the contract's
principal purpose being the traditionally maritime activity of
dredging to make a waterway more navigable to promote commerce.
Accordingly, J-Way argued, the federal district court in which it
had filed its case actually enjoyed exclusive jurisdiction
pursuant to 28 U.S.C. § 1333(1) (providing that "[t]he district
courts shall have original jurisdiction, exclusive of the courts
of the States, of . . . [a]ny civil case of admiralty or maritime
jurisdiction") and the CDA, 41 U.S.C. § 7102(d) (excepting appeals
"arising out of maritime contracts" from the jurisdiction of the
Court of Federal Claims or the agency boards of contract appeals).
After hearing argument on the issue, the district court
denied the motion to dismiss for lack of subject matter
jurisdiction, holding that it had admiralty jurisdiction over the
dredging contract dispute. J-Way S., Inc. v. United States, 460
F. Supp. 3d 65, 70 (D. Mass. 2020). That decision wasn't appealed.2
2We note that an appeal of that decision wouldn't have landed
on our desks; it would've gone to the Federal Circuit pursuant to
28 U.S.C. § 1292(d)(4)(B).
- 5 -
Before us, the government now agrees that "[t]he
district court had jurisdiction over this Contract Disputes Act
action under 28 U.S.C. § 1333(1), and 41 U.S.C. §§ 7102(d) and
7104(b)." But we are dutybound to probe subject matter
jurisdiction nonetheless. We, like the district court, find
subject matter jurisdiction exists, and we agree with the district
court's reasoning that led to this conclusion. By way of
explanation, we borrow extensively from the district court's sound
analysis (again, see In re Brady-Zell, 756 F.3d at 71) and pepper
that solid reasoning with a few of our own observations.
Generally, the United States Court of Federal Claims has
exclusive jurisdiction over contract claims against the U.S. in
excess of $10,000, see 28 U.S.C. §§ 1346(a)(2), 1491(a)(1), but
the CDA vests admiralty jurisdiction in the federal district courts
for lawsuits against the U.S. that "aris[e] out of maritime
contracts," 41 U.S.C. § 7102(d).3 See also 28 U.S.C. § 1333(providing exclusive federal district court jurisdiction for
"[a]ny civil case of admiralty or maritime jurisdiction"); 46
3 41 U.S.C. § 7102(d) provides:
Maritime contracts. – Appeals under section 7107(a) of
this title and actions brought under sections 7104(b)
and 7107(b) to (f) of this title, arising out of maritime
contracts, are governed by [the Suits in Admiralty Act]
or [the Public Vessels Act], as applicable, to the extent
that those [Acts] are not inconsistent with this
chapter.
- 6 -
U.S.C. § 30906 (instructing that civil actions in admiralty against
the U.S. must be brought in federal district court); El–Shifa
Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1353 (Fed. Cir.
2004) (noting that 28 U.S.C. § 1333 "grant[s] exclusive and
original jurisdiction to federal district courts over civil cases
in admiralty and maritime jurisdiction"); Thrustmaster of Tex.,
Inc. v. United States, 59 Fed. Cl. 672, 673-74 (2004) (observing
that exclusive jurisdiction to hear CDA claims regarding maritime
contracts lies with the federal district courts).
Whether a contract is a maritime contract is a difficult
question given the conceptual (rather than spatial) boundaries of
admiralty jurisdiction, Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14,
23 (2004), and "the answer 'depends upon . . . the nature and
character of the contract,'" id. at 24 (alteration in original)
(quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding
Co., 249 U.S. 119, 125 (1919)). "[T]he true criterion" for making
this determination is "whether [the contract in question] has
'reference to maritime service or maritime transactions.'" Id.(quoting Hall Bros., 249 U.S. at 125). Indeed, "the fundamental
interest giving rise to maritime jurisdiction is the protection of
maritime commerce." Id. at 25 (cleaned up) (quoting Exxon Corp.
v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608 (1991)).
In view of that interest, a court's inquiry should be
focused "on whether the principal objective of a contract is
- 7 -
maritime commerce." Id.; see also P.R. Ports Auth. v. Umpierre-
Solares, 456 F.3d 220, 224 (1st Cir. 2006) (describing this inquiry
as one focused on "whether the contract 'relate[s] to the
navigation, business or commerce of the sea'" (alteration in
original) (quoting Cunningham v. Dir., OWCP, 377 F.3d 98, 109 n.11
(1st Cir. 2004))). Because "[w]hile it may once have seemed
natural to think that only contracts embodying commercial
obligations between the 'tackles' (i.e., from port to port) have
maritime objectives, the shore is now an artificial place to draw
a line" -- "[m]aritime commerce has evolved along with the nature
of transportation and is often inseparable from some land-based
obligations." Kirby, 543 U.S. at 25; cf. id. at 27 ("If a
[contract]'s sea components are insubstantial, then the [contract]
is not a maritime contract.").
The government's argument against the district court's
exercise of jurisdiction over the contract dispute boiled down to
a customs/historical practice position: Citing cases dating back
to 1857, the government observed that the Court of Federal Claims
(and its predecessor, the United States Claims Court) have
exercised jurisdiction over government dredging contract disputes
since that time. But, as the district court explained, "no court
has squarely considered whether a government dredging contract is
a maritime contract," and "[t]he Supreme Court, the Federal
Circuit, and the Court of Federal Claims have all held that they
- 8 -
are 'not bound by a prior exercise of jurisdiction in a case where
it was not questioned and it was passed sub silentio.'" J-Way,
460 F. Supp. 3d at 69 (quoting United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 38 (1952), and citing Huston v. United
States, 956 F.2d 259, 261 (Fed. Cir. 1992); Red River Holdings,
LLC v. United States, 87 Fed. Cl. 768, 796 n.33 (2009)). "The
Court of Federal Claims' exercise of jurisdiction over government
dredging contract disputes has never been analyzed." Id.And so, plotting a course through these new waters, the
district court deployed that "principal objective" analysis the
Supreme Court set out in Kirby, 543 U.S. at 25, to determine
whether the contract was a maritime contract such that the district
court had jurisdiction over the dredging contract dispute before
it. Here's how that went.
"The undisputed purpose of the contract was to dredge a
navigable waterway and then deposit sand on a beach." J-Way, 460
F. Supp. 3d at 69 (citing the contract's explanation that "[t]he
work of this project will consist of the maintenance dredging of
shoaled areas within the existing Federal Navigation Channel").
Dredging a navigable waterway is traditionally a maritime
activity, and such a dredging contract facilitates maritime
commerce, which anchors maritime jurisdiction. Id. at 69-70
(citing Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594
F.3d 832, 837 (11th Cir. 2010) (concluding that a dredging contract
- 9 -
was a maritime contract because its "primary objective . . . was
dredging a navigable waterway," and that "had a direct effect on
maritime services and commerce")); see also Weston/Bean Joint
Venture v. United States, 123 Fed. Cl. 341, 375 (2015) (observing
that the U.S. Army Corps manual defines "maintenance dredging" as
"[t]he cyclic dredging of the same area over a period of time to
remove accumulating sediments and to maintain ship and barge
traffic" (alteration in original)).4
The district court was unpersuaded by the government's
argument, based on federal regulations referring to dredging as a
type of construction, that the principal objective of this contract
was construction, rather than maritime commerce -- indeed, the
"regulatory description does not determine the jurisdictional
question where, as here, the primary objective of the
'construction' was to assist maritime commerce." J-Way, 460 F.
4 And Puerto Rico Ports Authority, 456 F.3d at 225, found a
maritime contract when parties entered into it for the purpose of
securing removal of a sunken boat from San Juan Harbor's navigable
waters since its purpose thus was removing an obstruction to
maritime navigation and commerce. See id. (comparing D.M. Picton
& Co., Inc. v. Eastes, 160 F.2d 189, 192-93 (5th Cir. 1947)
(reasoning that "it would be difficult to imagine a contract more
completely maritime" than a contract for removal of materials that
were "menaces to navigation," and, accordingly, holding that a
claim for breach of contract "to remove hazards to navigation" was
within admiralty jurisdiction), with R. Maloblocki & Assocs., Inc.
v. Metro. Sanitary Dist., 369 F.2d 483, 485 (7th Cir. 1966)
(explaining that the purpose of the dredging contract there was
flood control and "any effect the project may have had upon
navigability was, at best, incidental," so the contract was not
maritime in nature (internal quotation marks omitted))).
- 10 -
Supp. 3d at 70. The district court was similarly unpersuaded by
the government's point that substantial portions of the contract's
period were meant to be spent on what it viewed as purely non-
maritime things, like grading the beach, mobilizing and
demobilizing equipment, constructing a temporary land-borne
pipeline, and, in doing these things, using equipment that was not
vessel-borne. That's all well and good. But no legal support was
offered to explain "why these considerations should outweigh the
contract's plain language and compensation scheme." Id. Overall,
"the contract provisions demonstrate that the primary purpose of
the dredging was to facilitate maritime commerce." Id.And while it was true that the contract's additional
objectives included protecting local wildlife and restoring
Lobsterville Beach (where the dredged sediment was to be deposited,
recall), the government simply had "not produced any evidence from
which th[e c]ourt [could] find that those objectives were the
primary purpose of the contract" under Kirby's test. Id. "[T]he
plain language of the contract indicates that J-Way was paid based
on the amount of sediment dredged," and "[t]he contract provided
no separate remuneration for depositing the sediment or grading
the beach." Id. (citing Kirby, 543 U.S. at 25 (noting that
maritime commerce is "often inseparable from some land-based
obligations")); see also Kirby, 543 U.S. at 27 ("[A contract's]
character as a maritime contract is not defeated simply because it
- 11 -
also provides for some land carriage."). This was driven home by
the government's concession "that less time was allocated to
grading the beach than to dredging the sediment." J-Way, 460 F.
Supp. 3d at 70.
Therefore, the district court concluded that, with
"[s]ubstantial portions of the contract . . . dedicated to
improving the navigability of a waterway," "[j]urisdiction over
this contract dispute properly lies in the federal district court."
Id.
And we agree -- this contract is, as the saying goes, of
a "genuinely salty flavor." Kirby, 543 U.S. at 22 (quoting Kossick
v. United Fruit Co., 365 U.S. 731, 742 (1961) (Harlan, J.)). Its
nature and character sound in maritime services, with the contract
aimed at protecting and effectuating maritime commerce via the
goal of improving navigability of the waterway. See generally id.
at 23-25, 27; P.R. Ports Auth., 456 F.3d at 224. Its principal
objective was maritime commerce. See Kirby, 543 U.S. at 25. For
all of these reasons, the federal district court had jurisdiction
over this maritime contract dispute.
Merits
Jurisdiction navigated, we turn now to the merits.
The CDA, as regulated by the Federal Acquisition
Regulations ("FAR"), which govern contracts with the government,
specifies that an appeal of a final default decision must be made
- 12 -
to the appropriate agency board within ninety days from the date
of its receipt or to the federal court within twelve months from
the date of its receipt. See 41 U.S.C. § 7104.5 J-Way's improper
default termination claim wasn't filed within the statutory
deadline, and J-Way does not attempt to argue otherwise. Instead,
as it argued below, J-Way insists that its claim should not be
time-barred because the 2017 termination notice was defective in
that it didn't comply with the FAR: It failed to inform J-Way
that it was a final decision and referred J-Way only to the
contract's disputes clause, which states nothing about the appeals
process or J-Way's appellate rights. J-Way argues it detrimentally
relied on that fatally flawed notice. What's more, says J-Way,
its claim could also be considered timely under the Fulford
doctrine, see Fulford Mfg. Co., ASBCA No. 2143, ASBCA No. 2144(May 20, 1955), since that doctrine extends the time in which a
contractor can challenge a default termination if the contractor
is assessed reprocurement costs. J-Way's thinking is that, "where
5 As explained above, the jurisdictional provision of the
Suits in Admiralty Act, 46 U.S.C. § 30906, overrides that of the
CDA to govern this maritime contract. The Suits in Admiralty Act
also provides for a two-year statute of limitations, id. § 30905
-- one year longer than that of the CDA, 41 U.S.C. § 7104(b)(3).
In their briefs on appeal, neither party argues that the longer
limitations period should govern this maritime contract or would
bear on the issue of notice. And J-Way's suit (filed more than
two years after the default termination), see J-Way, 460 F. Supp.
3d at 67, would have been untimely even under a two-year
limitations period. We therefore express no view on the question.
- 13 -
a surety pays a replacement contractor and then assesses those
reprocurement costs against the defaulted contractor," the Fulford
doctrine should be extended to apply to that situation as well.
J-Way acknowledges no court has actually done what it's asking us
to do on this point, but says "it stands to reason that" the
doctrine could apply as J-Way wants. And J-Way tells us its other
distinct breach of contract claims also are timely -- they don't
arise from the default termination and were filed within six years
of USACE's independent breaches of the dredging contract.6 See 41
U.S.C. § 7103(a)(4)(A) (setting a six-year limitations period for
contract claims against the government).
As we said when we kicked off today's opinion, the
district court thoughtfully dealt with these issues already,
concluding that, under the applicable legal framework, all of J-
Way's claims are time-barred, and none of J-Way's above-listed
arguments against that conclusion persuade. J-Way, 516 F. Supp.
3d at 89-93. We substantially echo the district court's reasoning
on each issue. Specifically:
6 J-Way also alleged assigned claims on behalf of J-Way's
surety, and the district court had to figure out whether the
assignment of the surety's claims to J-Way was invalid. It
concluded that the surety could not assign its claims to J-Way.
J-Way, 516 F. Supp. 3d at 94. Before us, J-Way does not challenge
this aspect of the district court's ruling.
- 14 -
• The second termination notice was missing the required
regulatory language, yes.7 But it provided J-Way with
adequate notice nonetheless. It explained J-Way was in
default but could appeal pursuant to the contract's disputes
clause -- and the disputes clause (which consists of § 52.233-
1 of the FAR, as incorporated by reference in the contract)
in turn states the contracting officer's decision on a claim
is "final unless the Contractor appeals or files a suit as
provided in 41 U.S.C. chapter 71" (with § 7104 laying out the
ninety-day or twelve-month time limit for appealing). Id. at
7 The missing regulatory language comes from FAR
33.211(a)(4)(v). Pursuant to 41 U.S.C. § 7103(e), "[t]he
contracting officer's decision shall state the reasons for the
decision reached and shall inform the contractor of the
contractor's rights as provided in this chapter." And the FAR
provision instructs that "the contracting officer shall . . .
[p]repare a written decision that shall include . . . [p]aragraphs
substantially as follows:"
This is the final decision of the Contracting Officer.
You may appeal this decision to the agency board of
contract appeals. If you decide to appeal, you must,
within 90 days from the date you receive this decision,
mail or otherwise furnish written notice to the agency
board of contract appeals and provide a copy to the
Contracting Officer from whose decision this appeal is
taken. The notice shall indicate that an appeal is
intended, reference this decision, and identify the
contract by number.
48 C.F.R. § 33.211(a)(4)(v). It also explains that a contractor
can "bring an action directly in the United States Court of Federal
Claims (except as provided in 41 U.S.C. [§] 7102(d), regarding
Maritime Contracts) within 12 months of the date [the contractor]
receive[s] th[e] decision." Id.
- 15 -
90-91; see also RMA Eng'g S.A.R.L. v. United States, 140 Fed.
Cl. 191, 216 (2018) (finding that a notice of termination was
valid under the CDA where the notice stated that the
contractor had the right to appeal under the disputes clause).
This means that even though the notice omitted the regulatory
language, it was not prejudicially defective because it
provided J-Way with adequate notice.
• Because we conclude that the notice was not defective from an
adequate-notice standpoint, we need not weigh in on J-Way's
argument that it detrimentally relied on a defective notice.
(That said, we tend to agree with the district court's
explanation that J-Way's asserted detrimental reliance was
unreasonable because it failed to allege any facts to "support
a reasonable belief that the [g]overnment would reconsider
the second Termination for Default." J-Way, 516 F. Supp. 3d
at 91.)
• Next, we decline to extend the scope of the Fulford doctrine
in the novel way J-Way urges us to. The doctrine "allows a
contractor to challenge a [g]overnment assessment for excess
reprocurement costs by challenging the underlying termination
for default, even if a challenge to the termination for
default would otherwise be time-barred." Id. at 92 (citing
MES, Inc. v. United States, 104 Fed. Cl. 620, 635 (2012)).
The purpose of the doctrine is not to allow contractors to
- 16 -
bring untimely claims in the circumstances in which J-Way
finds itself, i.e., the government has made no claim for
reprocurement costs against J-Way. Id. So J-Way cannot lean
on Fulford to resuscitate untimely claims that have nothing
to do with excess reprocurement costs.8
• And the district court was right that the breach of contract
claims are all based on the same set of facts and seek the
same relief as the improper termination claim, amounting to
impermissible "back-door challenges" to the decision to issue
the second default termination notice. Id. at 93 (citing
Mil. Aircraft Parts, ASBCA No. 60139, 16-1 BCA ¶ 36390 (June
3, 2016) (declining to field a breach of contract claim in a
similar situation, i.e., when the "affirmative claim sets
8We take this opportunity to explain a bit more about why we
decline to extend Fulford to situations in which the government
has made no claim against the contractor in default. Aside from
what we've just explained, there are several reasons for our
rejection of J-Way's invitation to do so: (1) The contractor will
know when demand is placed on its surety; indeed the contractor
will in most cases of charged default -- as here -- know that there
is a risk of reprocurement costs; (2) Appealing or suing within
the statutory period is a readily available safe harbor; (3) The
risk of engaging in litigation that turns out to have been
unnecessary can be mitigated with a standstill or tolling
agreement; and (4) If contractors could wait until the surety
actually makes demand on the contractor, there would be no final
decision by the government to trigger the appeal clock, and the
government would lose the ability to secure repose. In so holding,
we doubt that we create a trap for the unwary: J-Way was notified
at the time of its termination that the government was making a
claim on J-Way's performance bond, and should have anticipated
that its surety would seek to recoup any excess costs.
- 17 -
forth actions on the part of [the government] . . . that may
have constituted [contract] breaches," but the breach of
contract claim "is based on the same set of facts,
circumstances, and actions preceding the default terminations
and is inextricably bound up with the issue of the propriety
of those terminations" (alterations in original))).
And so we reject J-Way's arguments against the operation
of the time bar and decline to breathe new life into the untimely
complaint. All we'll add -- though we think it plenty clear on
the face of the district court's decision -- is this. The
termination notice bespeaks finality over and over, plus, from the
adequate-notice standpoint, it provided the relevant regulatory
and statutory breadcrumbs a reader could (and should) follow to
find the appellate logistics.9 There is nothing unreasonable about
expecting a company with the benefit of counsel (like J-Way) to
follow the sources from one to the other to obtain the appellate
9 No one says the notice provided the required regulatory
language -- the government didn't try to, nor could it. In its
brief, the government indicates that the notice provided "was
technically defective under the FAR, but it contained the critical
information necessary for J-Way to appeal." At oral argument, the
government tried to walk that back, stating it was not conceding
the notice was defective. In any event, we would have echoed the
district court's call for the government to "include the specific
language provided in FAR 33.211(a)(4)(v) in future notices," J-
Way, 516 F. Supp. 3d at 91 n.9, but, as the government explained
at oral argument, it has since done exactly that "as a matter of
best agency practice."
- 18 -
rights information that is clearly laid out in the disputes
clause's provisions. See, e.g., Turner Constr. Co., Inc. v. United
States, 367 F.3d 1319, 1321 (Fed. Cir. 2004) (explaining that
parties to government contracts are responsible for knowing what
laws apply to the contract, "and reasonable professional
competence in reading . . . contracts is presumed"). The
government met its obligation to inform J-Way of its rights by
giving adequate notice.
Conclusion
The district court's order granting the government's
motion to dismiss is affirmed. Each side shall bear its own costs.
- 19 -