Doyon Utilities, LLC v. United States

In the United States Court of Federal Claims
No. 19-199C
(Filed: April 20, 2020)
DOYON UTILITIES, LLC,
Plaintiff,
Keywords: 12(b)(1); Changes
v. Clause; 12(b)(6); No-Interest
Rule; Sovereign Immunity
UNITED STATES,
Defendant.
Adam Whitfield Cook, Birch, Horton, Bittner & Cherot, P.C., Anchorage, AK, for Plaintiff.
Steven Charles Hough, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman, Jr., Director, and Joseph H. Hunt, Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., with
whom were Brandon Cogswell, Senior Counsel, Defense Logistics Agency Energy, Ft. Belvoir,
VA, for Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge. 1
In this Contracts Dispute Acts (CDA) case, Plaintiff, Doyon Utilities, LLC (“Doyon”),
constructed two landfill natural gas (“LFG”) facilities in order to supply Defendant, the United
States, with electricity at Joint Base Elmendorf-Richardson (“JBER”)—a joint air force and army
base in Anchorage, Alaska. (See Compl. ¶ 1, ECF No. 1). Under a pass-through agreement
between the United States and Doyon, Doyon was to purchase LFG from the Municipality of
Anchorage (“MoA”), who owned and operated a landfill generating LFG, and resell that LFG to
the United States at cost. (See Compl. at 2–3). However, because of the United States’ delay in
payment, Doyon was forced to obtain a loan to sustain its operations and the United States
refused to reimburse Doyon for the interest it incurred on that loan. (Id. at 4–7). Thus, Doyon
filed this suit seeking a reimbursement of $178,096 for interest accrued between June 28, 2013
(when Doyon made its initial loan payment) and January 9, 2015 (when Doyon received
payment from the United States). (Id. at 8–10).
Before the Court is the United States’ Motion to Dismiss. (Def.’s Mot., ECF No. 14). The
United States seeks dismissal on two separate grounds: (1) lack of subject matter jurisdiction
1
The case was originally assigned to Senior Judge Charles F. Lettow and transferred to Judge David A. Tapp on
December 3, 2019. (See ECF No. 22).
1
pursuant to RCFC 12(b)(1); and (2) failure to state a claim under RCFC 12(b)(6). (Id. at 1). On
October 11, 2019, Doyon filed its Response. (Pl.’s Resp., ECF No. 17). On January 24, 2020, the
United States filed its Reply. (Def.’s Reply, ECF No. 25). This matter is now fully briefed and
ripe for decision. For the reasons set forth below, the Court GRANTS the United States’ Motion
to Dismiss.
Background
Doyon is a regulated utility provider and owns twelve facilities located at three United
States Army bases within Alaska. (Compl. at 1). On September 28, 2007, Doyon entered into a
contract (“the initial contract”) with the Defense Logistics Agency Energy (“DLA Energy”) 2 to
provide electric, natural gas, water, and wastewater utility services at Joint Base Elmendorf-
Richardson (“JBER”)—a joint air force and army base in Anchorage. (Id. at 2; Ex. A.). Under
the terms of the initial contract, Doyon was obligated to operate and maintain these utility
systems, replace and upgrade the infrastructure, and extend service to new connections as
requested by the United States. (Pl.’s Resp., at 3). The United States sought to develop a means
for capturing and converting into electricity landfill natural gas (“LFG”) generated at a nearby
landfill operated by the MoA. (Compl. at 2). The initial contract did not initially provide for the
supply of energy; even so, Doyon took steps to fulfill that role in constructing and operating an
LFG processing facility for the benefit of the United States. (Id.).
A. Landfill Gas Powerplant
In 2010, the MoA awarded Doyon a competitive procurement for construction and
operation of an LFG processing facility at MoA’s landfill in Anchorage, Alaska. (Id.). After the
MoA accepted its proposal, Doyon, the MoA, and the United States began working together to
develop an LFG power project. (Id.). On March 21, 2011, Doyon submitted a proposal to the
United States for the construction and operation of an LFG processing facility at the MoA
landfill (the “Techno-Economic Proposal”). (Id. at 3). The facility would collect and process
LFG for delivery to a power plant at JBER. (Id.).
In response to the Techno-Economic Proposal, the DLA Contracting Officer gave Doyon
a Notice to Proceed with development of a 35% design of an LFG processing facility on April
12, 2011. (Id. at 3–4). The Techno-Economic Proposal delineated that the project would require
the purchase of the LFG from the MoA, that Doyon would operate the facility and deliver the
LFG to a powerplant in JBER, and that the United States, as a beneficiary of the resulting utility
services, would be ultimately responsible for the funding of the project through a pass-through 3
agreement whereby Doyon would be reimbursed for the LFG it purchased. (Id. at 3).
On May 24, 2011, the MoA approved construction and operation of the LFG processing
facility in accordance with the Techno-Economic Proposal. (Id. at 4). On July 18 and August 2,
2011, Doyon and DLA Energy executed two supplemental agreements authorizing Doyon to
2
DLA Energy, formerly known as the Defense Energy Support Center, is a subordinate command of the Defense
Logistics Agency, a combat support agency of the United States Department of Defense. (Compl. at 2).
3
Doyon uses the terms “pass-through” and “flow-through” interchangeably to describe this agreement.
2
proceed with 65% of the design and purchase “long-lead items” for construction of the LFG
processing facility. (Id. at 3–4). On September 12, 2011, Doyon entered into a separate contract
with the MoA to purchase LFG for the JBER power plant. (Id. at 4). This was a Master
Implementation Agreement (“MIA”) in which the MoA agreed to sell LFG to Doyon. (Id.). The
MIA established a pricing mechanism for the sale of LFG to Doyon according to the weighted
average of the price of natural gas reflected in a Cost of Power Adjustment (“COPA”) filed by an
Alaska utility with the Regulatory Commission of Alaska, referred to as the “COPA System.”
(Id. at 4).
In August of 2012, Doyon commissioned the new LFG processing facility and power
plant for delivering LFG for power generation. (Id.). In late 2012, Doyon and the United States
negotiated a pass-through mechanism by which Doyon would pass the cost of LFG to the United
States at an identical rate as negotiated between Doyon and the MoA. (Id.). The pass-through
agreement referenced in the Techno-Economic Proposal states that: “Doyon Utilities . . . with the
visibility and support of the government, entered into a Master Implementation Agreement to
purchase landfill gas from the Municipality of Anchorage in August of 2011. . . .” (Id., Ex. 1 at
2). 4 That agreement further provides that, “[Doyon Utilities] will provide to the Government an
invoice for landfill gas which is based upon the same volume and base price used to compute
payment for landfill gas to the Municipality.” (Id., Ex. 1 at 3). 5 Thus, the COPA System utilized
in Doyon’s MIA with the MoA would govern the price paid by the United States for the LFG.
(Id.). On January 17, 2013, the contracting officer for DLA notified Doyon that DLA had
received the funds necessary for purchase of the LFG and a contract modification was being
drafted to establish contract line items (CLINs) necessary to fund the purchase. 6 (Compl. at 4).
Despite those assurances, a modification was not executed for several months. (Id. at 5).
Pursuant to its underlying contract, Doyon began paying the MoA for LFG on May 29, 2013.
(Id.).
During the process of finalizing the modification with the United States, and because of
its obligation to pay the MoA, Doyon obtained a loan through Toronto Dominion Bank in order
to keep the LFG operations funded. (Id. at 6). The United States provided Doyon draft
modification language on June 20, 2013. (Id. at 4–5). The proposed modification provided that,
prior to passing through costs to the United States, Doyon would compare the price paid pursuant
to the MIA “COPA System” with “prevailing gas prices in Southcentral Alaska,” and then
summarize the findings in a written report to the United States. (Id. at 5). Doyon did not agree to
the new requirement; thus, the modification was not effectuated. (Id. at 6). On June 28, 2013,
4
The pass-through agreement states that the MIA between Doyon and the MoA occurred in August of 2011.
However, Doyon’s complaint states that the MIA was effective in September of 2011. (Compl. at 4). It is unclear
from the record whether this discrepancy references two agreements or if reference to one of those dates is in error.
Because it is not relevant to the motion at bar, the Court declines to address it further.
5
Per that agreement, the LFG collected from the landfill via the Gas Collection System would be received by the
Gas Processing System located at the same property and process the raw landfill gas to fuel grade specifications.
(Compl. Ex. 1 at 2). Once processed, the LFG would pass through a meter and analyzer, then through a pipeline to
the Doyon-operated LFG Facility. (Id.). At that point, the LFG would be burned to produce electricity for use by
JBER. (Id.).
6
It is unclear from the briefing why CLINs were not established after acceptance of the Techno-Economic Proposal
or in the prior supplemental agreements.
3
approximately thirty days after Doyon’s initial payment to the MoA, Toronto Dominion Bank
made the first withdrawal from Doyon’s account for the above-mentioned loan. (Id. at 8). This
withdrawal presumably included the first interest payment. In August 2013, Doyon notified
DLA’s contracting officer that Doyon was reliant on borrowed funds because the pass-through
modification had not yet been implemented. (Id. at 5, Ex. 6). On September 30, 2013, the United
States executed Modification P00097 to Contract No. SP0600-07-C-8262, which established a
CLIN for reimbursement for LFG consumed between November 27, 2012 to September 30,
2013, but not for future LFG use. (Id. at 6). Despite the modification, the United States
prohibited Doyon from submitting invoices for the LFG because the price assessment provision
was not yet integrated. (Id.). At that point, Doyon had been paying the invoices from the MoA
for eight months. On July 30, 2014, the United States executed Modification P00105 to Contract
No. SP0600-07-C-8262, which established a CLIN to reimburse Doyon for LFG consumed
between October 1, 2013 to June 30, 2014, as well as reimbursement for the estimated LFG to be
consumed for the upcoming two-month period between July 1, 2014 and September 30, 2014.
(Id. at 7). Again, the United States prohibited Doyon from invoicing the federal government for
LFG use pending finalization of the “market assessment” language. (Id.).
On November 3, 2014, Doyon informed the DLA contracting officer that “[Doyon] has a
huge amount invested in LFG purchases, 2 years worth, and has not received payment for any of
the gas.” (Id.; Compl., Ex. 7). On December 29, 2014, Doyon and the United States finally
executed a supplemental agreement permitting Doyon to pass-through its monthly LFG costs to
the United States. (Compl. at 7–8). The finalized modification included the same “COPA
System” for pricing LFG as encompassed in the MIA, thereby passing-through the costs as
originally agreed to by the parties (Id.). The modification also contained “market assessment”
language nearly identical to the language proposed in June of 2013. (Id.).
B. Financing and Equitable Adjustment Request
On December 31, 2014, Doyon submitted a $3,718,736 invoice for LFG purchased
between November 27, 2012 and September 30, 2014. (Id. at 8). The United States paid that
invoice nine days later on January 9, 2015. (Id.). As previously noted, in order to finance its
purchase of LFG, Doyon obtained a loan through Toronto Dominion Bank. This loan carried an
interest rate of 5.03%. (Id. at 6, 8). Thus, Doyon accrued $178,096.00 in interest (the “Interest
Balance”) on the loan used to finance the purchase of LFG from the MoA. (See id. at 8).
On April 23, 2015, Doyon submitted to the contracting officer a $178,096.00 request for
equitable adjustment for the Interest Balance incurred between June 28, 2013 and January 9,
2015. (Id.). The contracting officer denied Doyon’s request for equitable adjustment on April 6,
2017. (Id.). On October 9, 2017, Doyon submitted a Certified Claim for $178,096.00, pursuant to
the Contract Disputes Act, 41 U.S.C. § 7107 et seq., which the contracting officer denied on
February 7, 2018. (Id. at 9, Ex. B). This suit was brought approximately one year later.
Standard of Review
The burden of establishing subject matter jurisdiction rests with the plaintiff, who must
do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). This
4
Court’s jurisdiction to entertain claims and grant relief depends on the extent to which the United
States has waived sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). Such a
waiver is found in the Tucker Act, which grants the Court of Federal Claims jurisdiction to hear
claims, inter alia, based on an express or implied contract with the United States. 28 U.S.C. §
1491(a)(1). However, for jurisdiction to exist, “there must be privity of contract between the
plaintiff and the United States.” Cienega Gardens v. United States, 194 F.3d 1231, 1239 (Fed.
Cir. 1998).
When faced with a motion to dismiss for lack of subject matter jurisdiction pursuant to
the RCFC Rule 12(b)(1), a court must assume that all undisputed facts alleged in the complaint
are true and draw all reasonable inferences in the plaintiff’s favor. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); see also Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The
movant, however, may challenge the truth of any facts upon which jurisdiction depends. See
Raymark Indus. v. United States, 15 Cl. Ct. 334, 338 (Cl. Ct. 1988). If it does, the plaintiff must
come forward with prima facie showing of jurisdiction. Id. The plaintiff cannot rely only on its
allegations. See Hornback v. United States, 52 Fed. Cl. 374, 377 (Fed. Cl. 2002). Moreover, the
Court may look to evidence outside of the pleadings in order to ascertain the propriety of its
exercise of jurisdiction over a case. Rocovich v. United States, 933 F.2d 991, 994 (Fed. Cir.
1991), aff’d in relevant part, Martinez v. United States, 281 F.3d 1376 (Fed. Cir. 2002). If the
Court determines at any time that subject matter jurisdiction is lacking, it must dismiss the
complaint. See RCFC 12(h)(3).
Under RCFC Rule 8, a pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Pursuant to RCFC Rule 12(b)(6), the Court will
grant a defendant’s motion to dismiss if it finds the plaintiff has failed to state a claim upon
which relief may be granted. In considering a motion to dismiss for failure to state a claim, the
Court “must accept as true all of the allegations in the complaint” and “must indulge all
reasonable inferences in favor of the non-movant.” Sommers Oil Co. v. United States, 241 F.3d
1375, 1378 (Fed. Cir. 2001).
In order for a claim to be properly stated, the complaint “must contain sufficient factual
matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “[O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. “A claim is plausible on its face when ‘the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. This plausibility standard requires that a complaint contain “more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). Neither allegations “that are ‘merely consistent with’ a
defendant’s liability,” nor “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” are sufficient. Id. A complaint should be dismissed under RCFC
12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay
v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).
Discussion
In its Complaint, Doyon advances three arguments in support of its claim for relief: (1)
under the Contract Changes clause, FAR 52.243-1, Alt I, “the Contracting Officer’s approval of
5
[Doyon’s] proposal to construct an LFG processing facility was a ‘change to the general scope of
the contract,’” that resulted in an increase in the cost of performance to Doyon; (2) alternatively,
under the Contract Changes clause, FAR 52.243-1, Alt I, “the Contracting Officer’s approval in
the fourth quarter of 2012 of a ‘pass-through’ of the LFG, using the same pricing mechanism as
the one agreed to by [Doyon] and the MoA, was a ‘change in the general scope of the contract,”
that resulted in an increase in the cost of performance to Doyon; and (3) alternatively, the
Contracting Officer constructively changed the Contract requirements. (Compl. at 9).
In its motion to dismiss, the United States argues that Doyon has failed to state a claim
for which relief can be granted because “interest on borrowings in an unallowable cost under the
Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation
Supplement (DFARS).” (Def.’s Mot. at 4–6). The United States also argues that subject matter
jurisdiction is lacking because Doyon’s claim for interest on borrowings is barred by sovereign
immunity. (Id. at 6–13). The United States further maintains that Doyon has failed to state a
claim based on an actual change because “the contract’s changes clause applies only to unilateral
change orders, not supplemental agreements.” (Id. at 13–15). With regard to Doyon’s
constructive change theory, the United States argues that: (1) the Court lacks subject matter
jurisdiction over this claim because Doyon failed to submit this claim to the Contracting Officer
as required by the CDA; and (2) Doyon failed to state a claim upon which relief can be granted
because Doyon was not required to perform work beyond the contract requirements but rather
made use of the debt financing unilaterally. (Id. at 15–17).
In response, Doyon argues: (1) it has stated a cognizable claim under the changes theory
because “the services ordered by [the United States] were intended to flow through a utility tariff
and are therefore allowable according to both the express terms of the agreement and the trade
practices of the industry”; (2) subject matter jurisdiction exists for Doyon’s changes theory
because it filed a Certified Claim “following the contracting officer’s unilateral modification to
the scope of the agreement”; (3) Doyon’s claim is not barred by sovereign immunity because
“where, as here, such costs are both demonstrably connected to additional work ordered by [the
United States] and incurred pursuant to the Changes clause of the contract, sovereign immunity
is waived”; (4) Doyon has stated a claim under its constructive change theory as it has “met the
minimum requirement of facts necessary to assert a claim with both a recitation of facts and
attachment of exhibits to the Complaint”; (5) Doyon presented “the basic allegation of
constructive claim . . . or, at the very least, the minimum necessary operative facts forming the
basis for the allegation were present in the claim” that Doyon submitted to the Contracting
Officer. (Pl.’s Resp. at 1–2). In addition, Doyon objects to Exhibit A of the United States’
motion as an improper exhibit. (See Pl.’s Resp. at 9–10).
As explained below, the Court concludes that Doyon has sufficiently stated a cause of
action so as to avoid dismissal for failure to state a claim but agrees with the United States that
Doyon’s claim for reimbursement of interest is barred by sovereign immunity. Consequently, the
United States’ other theories of dismissal are moot.
A. Consideration of United States’ Exhibit
At the outset, Doyon objects to the Court’s consideration of Exhibit A to the United
States’ motion sub judice, which it refers to as the “28 September 2007 Contract referenced at
6
Paragraph 6 of Doyon’s Complaint.” (Pl.’s Resp. at 9-10). Doyon submits that “Exhibit A is not
the Contract. It appears to be a draft agreement that was never executed by the parties, and is in a
redline or ‘track changes’ format.” (Id.). Doyon’s response attaches the original, unmodified
contract of September 28, 2007. (See Pl.’s Resp. Ex. 1). The United States indicates that the
objected exhibit was a “conformed version of the contract submitted for the convenience of the
Court and the parties, and reflects the relevant supplemental agreements (i.e., bilateral contract
modifications) that are now part of the contract . . . .” (Def.’s Reply at 2). Though Doyon objects
to the consideration of such document, it does not challenge the authenticity of what the
document purports to be. After comparing that document to the official contract, this Court finds
that the Complaint substantially relied on the changes made and relevant supplemental
agreements. Therefore, the document will not be excluded from consideration.
B. “No-Interest” Rule
Doyon principally seeks to recover the interest it incurred on the loan it received from
Toronto Dominion Bank. The United States contends that Doyon’s claim for interest fails to state
a claim because, according to the United States, “interest on borrowings is an unallowable cost
under the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation
Supplement (DFARS).” (Def.’s Mot. at 4–6). The Court disagrees.
Doyon’s complaint is predicated on the recoverability of interest pursuant to the changes
clause incorporated into the contract, which provides:
(a) The Contracting Officer may at any time, by written order, and without
notice to the sureties, if any, make changes within the general scope of this
contract in any one or more of the following:
(1) Description of services to be performed.
(2) Time of performance (i.e., hours of the day, days of the week,
etc.).
(3) Place of performance of the services.
(b) If any such change causes an increase or decrease in the cost of, or the
time required for, performance of any part of the work under this contract,
whether or not changed by the order, the Contracting Officer shall make an
equitable adjustment in the contract price, the delivery schedule, or both, and
shall modify the contract.
(c) The Contractor must assert its right to an adjustment under this clause
within 30 days from the date of receipt of the written order. However, if the
Contracting Officer decides that the facts justify it, the Contracting Officer
may receive and act upon a proposal submitted before final payment of the
contract.
(Def.’s Mot. at 13 (citing FAR § 52.243-1)).
7
The interest and other financial costs section of the FAR provides that, in contracts with
commercial organizations, “[i]nterest on borrowings (however represented), bond discounts,
[and] costs of financing and refinancing capital . . . are unallowable” costs. FAR § 31.205-20, 48
C.F.R. § 31.205-20. “By its terms,” this provision “applies to interest on borrowings. A
borrowing is generally defined as a loan.” Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed.
Cir. 1997) (internal quotation marks omitted). 7 The FAR’s contract cost principles and
procedures provide that this “no-interest” provision applies to “[t]he pricing of contracts,
subcontracts, and modifications to contracts and subcontracts whenever cost analysis is
performed” and to “[t]he determination, negotiation, or allowance of costs when required by a
contract clause.” FAR § 31.000. The DFARS’ pricing of contract modifications clause provides
that “[w]hen costs are a factor in any price adjustment under this contract, the contract cost
principles and procedures in FAR part 31 . . . apply.” DFARS § 252.243-7001; 48 C.F.R. §
252.243-7001.
Under 28 U.S.C. § 2516(a), “[i]nterest on a claim against the United States shall be
allowed in a judgment of the United States Court of Federal Claims only under a contract or Act
of Congress expressly providing for payment thereof.” 28 U.S.C. § 2516(a). Much ink has been
spilled on the long-standing “no-interest rule” as it applies to government contracts. Through the
years, countless contractors have argued for reimbursement of extraneous costs incurred as a
result from a government change to the contract or some other action must that be financed either
through borrowings, through use of equity capital, or a combination of the two.
In early decisions, courts ruled that interest paid to third parties to finance changed work
was a proper component of equitable adjustments. See Bell v. United States, 404 F.2d 975 (Ct.
Cl. 1968); see also England v. Contel Advanced Sys., Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004)
(discussing Bell); J.D. Hedin Constr. Co. v. United States, 456 F.2d 1315, 1330 (Ct. Cl.1972)
(same). In Bell, following several “Change Orders” from the government unilaterally modifying
the contractor's obligation, the contractor sought to recover interest costs undertaken in order to
meet the changed requirements. Bell, 404 F.2d at 975. This court's predecessor held that those
costs were recoverable, reasoning that the subject clause contemplated the award of interest costs
to compensate a contractor for changes to the contract, thereby constituting government consent
to the award of interest. Id. at 984. Further, the court held that DOD's policy of allowing interest
as a cost under an equitable adjustment was not in conflict with 28 U.S.C. § 2516(a) because “the
statute and its policy apply to demands in ‘breach’ claims against the United States where the
plaintiff seeks compensation for delay in payment.” Id. at 983–84. The court determined that the
plaintiff's demand was “not based upon ‘breach’ but upon a change compensable under the
‘Changes’ article which recover entitles the contractor to reimbursement for the resulting
‘increase … in the cost of performance of this contract.’” Id. at 984.
Since Bell, the Federal Circuit has allowed for recovery of financing-related costs “as part
of an equitable adjustment under a fixed-price contract if the contractor has actually paid interest
because of the government's delay in payment,” but cautioned that “interest on equity capital is
7
Widnall, supra, and Servidone Construction, infra, considered section 15-205.17 of the former Defense
Acquisition Regulation (DAR), which “was superseded” by the FAR in 1984. Widnall, 113 F.3d at 1226 n.3.
However, “[t]he corresponding . . . provision[],” DAR § 15-207.15, is identical to FAR § 31.205-20, “in all relevant
aspects.” Ingalls Shipbuilding, Inc. v. Dalton, 119 F.3d 972, 975 (Fed. Cir. 1997).
8
not recoverable.” Wickham Contracting Co. v. Fischer, 12 F.3d 1574, 1582–83 (Fed. Cir. 1994).
In Wickham Contracting, the construction company contracted with the General Services
Administration (GSA) for restoration of a post office and courthouse. 12 F.3d 1574. Due to
GSA-imposed delays, the work was not completed within the timeframe dictated by the contract.
Id. at 1575. Based on these delays, the contractor sought reimbursement for additional overhead
costs and the cost of both equity capital and borrowed funds during the delay. Id. at 1577. While
the court rejected the contractor’s claim for interest on equity capital, it noted that “[a]lthough
interest on equity capital is not recoverable, a contractor may recover interest actually paid on
funds borrowed because of the government’s delay in payments and used on the delayed
contract.” Id. at 1582 (citing Gevyn Constr. Co. v. United States, 827 F.2d 752, 754 (Fed. Cir.
1987)). In Gevyn, the court held, “[28 U.S.C. §] 2516(a) does not bar an interest award as part of
an equitable adjustment under a fixed-price contract if the contractor has actually paid interest
because of the government’s delay in payment.” Gevyn, 827 F.2d at 754. Nevertheless, Wickham
Contracting affirmed the denial of the plaintiff's claim because it “did not show that the amount
sought based on the borrowed funds was incurred in connection with [the project]. . . .” Wickham
Contracting, 12 F.3d at 1583.
In 2004, the Federal Circuit directly addressed the “no-interest rule” in the context of a
contract case where the recovery of “interest [that a contractor] paid on the extra money it was
forced to borrow as a result of the [United States’] delay” was ultimately denied. See Contel
Advanced, 384 F.3d at 1379. In England v. Contel Advanced, the plaintiff (CASI) sought to
recover interest on money borrowed to finance its performance of a contract to maintain a
telecommunication system for the Navy. Id. at 1374. The implementation phase of the contract
was awarded to CASI on a lease to ownership basis and incorporated an interest component to
compensate for payment over a 60-month span. Id. at 1375. At the time of acceptance, the
number of units installed was significantly less than what was originally contemplated, but the
Navy did not adjust the contract price until many years later. Id. To compensate for that delay,
CASI obtained a loan from its parent company against which it assigned the Navy's installment
payments. Id. Because of the United States’ delay in readjusting the contract price, CASI
incurred a financing charge greater than would have otherwise. Id. at 1376. The court held that
the “no-interest” rule applied to costs incurred to borrow money where there is a “delay in
payment,” reasoning that “[t]he [no-interest] rule . . . [bars] interest costs incurred on money
borrowed as a result of the [G]overnment’s breach.” Id. at 1379. The Court, quoting J. D. Hedin
Construction, 456 F.2d at 1330, stated that “[i]nterest paid on bank loans made because of
financial stringency resulting from a breach by the United States of a contract between it and the
borrower is not recoverable.” 384 F.3d at 1379 (internal citations omitted). Ultimately, the
Contel Advanced Court concluded that because there was no waiver, the no-interest rule barred
CASI from recovering the excess interest costs that occurred as a result of the government’s
delay. 384 F.3d at 1380.
The United States argues that Bell is no longer binding precedent because it is based on
Department of Defense Instruction No. 4105.11 dated November 23, 1954 (DODI 4105.11),
which has since been superseded. (Def.’s Mot. at 11 (citing Easter v. United States, 575 F.3d
1332, 1337 (Fed. Cir. 2009); cf. Wichita Eng’g, 1955 WL 8899)). The Court, however, is not
persuaded. In Energy Northwest, the United States partially breached its standard contract to
dispose of spent nuclear fuel. Energy Northwest v. United States, 641 F.3d 1300 (Fed. Cir.
2011). In order to mitigate its damages, Energy Northwest borrowed funds to finance the
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construction of a storage unit where the spent nuclear fuel could be stored indefinitely. Id. at
1304. In doing so, it incurred approximately $6 million in interest expenses. Id. at 1303. Energy
Northwest’s claim was largely grounded on the holding in Wickham Contracting. Id. at 1311. In
defense, the United States argued that sovereign immunity shielded the government against
liability for the entirety of interest claimed by the plaintiff, relying on Library of Congress v.
Shaw, 478 U.S. 310 (1986). Id. The Federal Circuit agreed, holding that there was no waiver of
sovereign immunity without a changes clause. Id at 1312. Of particular note here, the Federal
Circuit explained:
Energy Northwest is reading too much into Wickham Contracting. . . [T]hat
case’s pronouncement that “a contractor may recover interest actually paid
on funds borrowed” was limited to the context of an “equitable adjustment.”
The term “equitable adjustment” had specific meaning in government
contracting cases denoting the presence of a “Changes” clause. Although
Wickham Contracting does not expressly describe such a clause, the core
issue in that case was the application of an “equitable adjustment” for
numerous delays unilaterally imposed by the General Services
Administration (“GSA”). The opinion repeatedly refers to “the Eichleay
formula”—a formula used in computing equitable adjustments under a
“Changes” clause. And the Board opinion underlying Wickham Contracting
notes the GSA's many “change orders.”
Based on this we conclude that Wickham Contracting, contrary to Energy
Northwest's contention, was in fact a “Changes” clause case governed by
Bell. Because the “Changes” clause amounted to a waiver of the
government’s immunity against recovery of interest, Wickham Contracting
cannot stand for the proposition Energy Northwest puts forward (i.e., that
interest may be recovered without a waiver if the interest is traceable to the
breach).
Id. (internal citations omitted).
Energy Northwest distinguished Bell and its progeny by explaining that the plaintiffs in
those cases sought an equitable adjustment, and “the underlying reason for the interest award
was the United States’ consent to liability for interest, indicated by the inclusion of the ‘Changes’
clause.” Id. at 1311. Accordingly, interest is recoverable for an equitable adjustment if the
changes clause applies and the contract does not expressly provide otherwise.
Here, Doyon seeks an equitable adjustment to recover interest it incurred based on the
government’s delayed payment. This request is predicated on the existence of the changes
clause, because the Contracting Officer’s approval of Doyon’s proposal to construct an LFG
processing facility was a “change to the general scope of the contract,” resulting in an “increase .
. . in the cost of performance.” (Compl. at 9). Energy Northwest makes clear that Bell remains
binding precedent; there are situations where interest is recoverable against the United States.
Whether interest is recoverable against the United States in this case is entirely dependent on
whether the changes clause waives the Government’s sovereign immunity. Thus, the no-interest
rule does not, by itself, preclude Doyon’s claims.
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C. Sovereign Immunity
The United States, in the alternative, argues that Doyon’s claims are barred by sovereign
immunity. In support of that argument, it states that Bell would not permit Doyon to recover in
this case because the relevant clause expressly excludes the recovery of interest, a distinction in
the Bell contract. Because of that exclusion, the United States claims that the existence of a
changes clause does not explicitly waive sovereign immunity.
In regard to sovereign immunity, Doyon argues that the costs it incurred are
demonstrably connected to additional work ordered by Defendant and incurred pursuant to the
changes clause of the contract, such that sovereign immunity is waived. (Pl.’s Resp. at 2). Doyon
further argues that 28 U.S.C. § 2516(a) bars the recovery of compounding interest on a claim but
does not bar interest actually paid on funds borrowed because of the government’s delay. (Id. at
17–18). Finally, Doyon maintains that, contrary to the argument of the United States, FAR’s
disallowance of interest claims on the United States does not apply to a contract for utilities
where tariffs were approved by regulatory agencies and are exempt pursuant to 48 C.F.R. §
9903.201-1(b)(5). (Pl.’s Resp. at 12). This argument goes to whether the incorporation of the
FAR § 31.205-20 and DFARS § 252.243-7001 apply to this contract.
Accordingly, it must be determined whether sovereign immunity has been effectively
waived by the changes clause. Doyon does not allege that it is entitled to recover interest
pursuant to a statutory waiver of sovereign immunity but apparently suggests that the mere
existence of the relevant clause acts as a waiver. As previously noted, 28 U.S.C. §
2516(a) provides that, “[i]nterest on a claim against the United States shall be allowed in a
judgment of the United States Court of Federal Claims only under a contract or Act of Congress
expressly providing for payment thereof.” That statute codifies the rule that sovereign immunity
bars claims for interest against the United States in the absence of a contract provision or statute
providing for payment of interest. 28 U.S.C. § 2516(a), see also Getty Oil Co. v. United States,
767 F.2d 886 (Fed. Cir. 1985). Consistent with other waivers of sovereign immunity, waivers of
immunity for the payment of interest has been construed narrowly. See Shaw, 478 U.S. at 321
(“[The] character or nature of ‘interest’ cannot be changed by calling it ‘damages,’ ‘loss,’
‘earned increment,’ ‘just compensation,’ ‘discount,’ ‘offset,’ or ‘penalty,’ or any other term,
because it is still interest and the no-interest rule applies to it.”) (alteration in original)); see also
Sandstrom v. Principi, 358 F.3d at 1380 (Fed. Cir. 2004) (“Under the long-standing ‘no-interest
rule,’ sovereign immunity shields the U.S. government from interest charges for which it would
otherwise be liable, unless it explicitly waives that immunity[.]”).
Apart from the specific statutory authorizations, case law finding the United States liable
for interest involves contracts that encompassed a waiver of the United States’ immunity. The
seminal case, Bell v. United States, found a contractual waiver of the no-interest rule by virtue of
the contract changes clause, which called for an equitable adjustment to the contract price. 404
F.2d 975. Bell specifically dealt with an Army procurement contract that included a changes
clause authorizing judicial adjustment of the contract terms to account for unilateral changes the
government might make to the contractor’s obligation. Id. at 976. After the government
unilaterally issued change orders modifying the contractor’s obligations, the contractor sought to
recover certain interest costs undertaken in order to meet the changed requirements. Id. That
changes clause in Bell provided:
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The Contracting Officer may at any time, by a written order, and without
notice to the sureties make changes of any one or more of the following types:
...
If such changes cause an increase or decrease in the amount of work under
this contract or in the cost of performance of this contract or in the time
required for its performance an equitable adjustment shall be made. . . .
Id. at 976–77. This Court's predecessor held that such costs were recoverable, reasoning that the
subject clause necessarily contemplated the award of interest costs to compensate a contractor
for changes to the contract; this constituted government consent to the award of interest. Id. at
984.
In Wickham Contracting, the plaintiff sought recovery of interest payments incurred in
order to finance performance under a government contract. Wickham Contracting, 12 F.3d at
1574. There is no explicit reference to a changes clause in Wickham Contracting opinion. The
court ultimately denied plaintiff’s claim for lack of proof, but noted that, although interest on
equity capital is not recoverable, a contractor may recover interest actually paid on funds
borrowed because of the government’s delay in payments and used on the delayed contract. Id. at
1582–83 (citing Gevyn Constr. Corp. v. United States, 827 F.2d 752, 754 (Fed. Cir. 1987) (“[28
U.S.C. §] 2516(a) does not bar an interest award as part of an equitable adjustment under a fixed-
price contract if the contractor has actually paid interest because of the government’s delay in
payment.”)).
On this point, case law is scarce as to what the changes clause must incorporate in order
to effectively waive the shield of sovereign immunity. In Servidone Construction Corp. v. United
States, the Claims Court found the Government liable for contractor’s increased costs due to
differing site conditions but rejected contractor’s request for recovery of interest on borrowings it
made to cover additional performance costs. 19 Cl. Ct. 346 (1990). Specifically, with regard to
the recovery of interest, the court found:
General Provision 19 of the contract controls the pricing of change orders. In
turn, it incorporates section 15 of the Defense Acquisition Regulations
(“DAR”). The applicable DAR is found at 32 C.F.R. § 15–205.17
(1982). That section provides that “[i]nterest on borrowed funds (however
represented) [is] unallowable.” The applicability of such a provision in the
present case conclusively precludes recovery of interest.
Id. at 386. On appeal, the Federal Circuit held that: (1) the award of damages under modified
total cost method was not clear error, and (2) the contractor was not entitled to recover as
damages interest it paid on sums borrowed to cover excess costs. Servidone Const. Corp. v.
United States, 931 F.2d 860 (Fed. Cir. 1991). In its affirmation of the trial Court decision, the
Court of Appeals found that Servidone’s contract specifically barred recovery of this interest. Id.
at 863 (citing language quoted above).
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Here, the subject changes clause states, in relevant part:
(a) The Contracting Officer may at any time, by written order, and without
notice to the sureties, if any, make changes within the general scope of this
contract . . .
(b) If any such change causes an increase or decrease in the cost of, or the
time required for, performance of any part of the work under this contract,
whether or not changed by the order, the Contracting Officer shall make an
equitable adjustment in the contract price, the delivery schedule, or both, and
shall modify the contract . . . .
(Def.’s Mot. at 13–14 (citing FAR § 52.243-1)). Though its language is identical to that in Bell,
Doyon’s contract with the United States specifically incorporates the DFARS’ pricing of contract
modifications clause. Importantly, that clause states, “when costs are a factor in any price
adjustment under this contract, the contract cost principles and procedures in FAR part 31 . . .
apply.” (See Def.’s Mot., Ex. A at 54) (emphasis added). Based on the that provision, FAR part
31’s interest and other financial costs provision applies to the pricing of modifications and
adjustments under its contract and the changes clause. (Id.). The incorporation of the provision
effectively barring interest means that the changes clause does not apply and sovereign immunity
is not waived. Thus, as argued by the United States, Doyon’s claims are governed by Servidone
rather than by Bell and its progeny. Because Doyon’s contract with the United States contains a
specific provision excepting interest from the changes clause, Doyon is precluded from
recovering interest on borrowings through an equitable adjustment. See FAR § 31.205-20
(“[I]nterest on borrowings . . . are unallowable” costs.); DFARS § 252.243-7001. The Court
finds that the changes clause does not amount to a waiver of sovereign immunity, as the recovery
of interest is explicitly barred by incorporation of DFARS § 252.243-7001.
Doyon asserts that the United States’ sovereign immunity against liability for recovery of
interest on borrowing, as it is codified in 28 U.S.C. § 2516(a), bars interest on a claim and not as
a claim. (Pl.’s Resp. at 17). The Court is not swayed by this argument. The Court in Energy
Northwest rejected an argument identical to Doyon’s. 641 F.3d 1300. As to whether sovereign
immunity applies to interest “as” a claim, the Federal Circuit explained that the court may only
award interest as an equitable adjustment pursuant to changes requested by the government
under a changes clause when the changes clause “amount[s] to a waiver of the government’s
immunity against recovery of interest.” 641 F.3d at 1310–1311. Here, because there has been no
waiver of immunity, recovery of the Interest Balance as a claim is not allowable.
As to whether the non-interest recovery provision of the FAR applies to this contract,
Doyon maintains that interest on borrowings is an allowable cost because the Cost Accounting
Standards (CAS) under FAR part 30 and chapter 99 of the FAR Appendix do not apply to its
contract. (Pl.’s Resp. at 12). According to Doyon:
Doyon incurred financing costs purchasing LFG for the purpose of generating
electricity, with plans to include all utility costs in tariff rates. Doyon incurred
financing costs in anticipation that they would be exempt from [the Cost
Accounting Standards (“CAS”)] and therefore allowable. The Government
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cannot avail itself of the DFARS provision to “reverse” Doyon’s reasonable
expectations.
(Pl.’s Resp. at 20). FAR part 31 sets forth the Cost Principles that govern whether a cost is
allowable—i.e., “whether a particular cost can be recovered from the government.” Boeing N.
Am., Inc. v. Roche, 298 F.3d 1274, 1280 (Fed. Cir. 2002). In contrast, the CAS in FAR part 30
and the FAR Appendix govern whether a cost is allocable, which is “an accounting concept
involving the relationship between incurred costs and the activities or cost objectives (e.g.,
contracts) to which those costs are charged.” Id. Thus, by stating that “FAR Part 31 is ‘Cost
Accounting Standards’ (‘CAS’),” Doyon melds concepts of cost allowability under the Cost
Principles of FAR part 31 and cost allocability under FAR part 30 and the FAR Appendix. (See
Pl.’s Resp. at 12). “Although a cost may be allocable to a contract, the cost is not necessarily
allowable.” Roche, 298 F.3d at 1280. As such, Doyon’s argument in this regard is meritless.
In further support of its position, Doyon contends that “the Preamble of the Contract
states: ‘Doyon is exempt from Cost Accounting Standards’ and ‘FAR Part 31 does not apply to
this contract.’” (Pl.’s Resp. at 12–13). However, the language cited by Doyon was expressly
“deleted in its entirety” by Modification No. P00003. (See Def.’s Mot., Ex. C at 13). The
modification language unambiguously states:
Item number two of the Preamble is hereby deleted in its entirety and replaced
with the following: 2. As a result of the above and subject to the conditions
set forth in the CAS Waiver, September 2, 2004, and FAR Part 31 Deviation,
August 13, 2007, granted with respect to utilities privatization, the
Contracting Officer has determined that the Tariff Rate component of the
Fixed Monthly Charge identified in Section B.4 of this Contract is exempt
from Cost Accounting Standards (CAS) in accordance with 48 CFR
9903.201-1(b)(5) and the requirements of FAR Part 31. Should RCA
withhold its approval of Doyon’s application for regulated status and the
contract type is modified to FPPPR, the Contracting Officer will modify this
determination accordingly.
(Id.). In its place, the updated contract provides merely that “the Tariff Rate component of the
Fixed Monthly Charge . . . is exempt from Cost Accounting Standards (CAS).” (Def.’s Mot., Ex.
C at 13; Ex. A at 6). Modification No. P00003 explicitly states that the “[l]anguage in the
contract preamble is [being] modified to clarify the limitations of the CAS exemption and
applicability of FAR Part 31” to the contract. (Def.’s Mot., Ex. C at 2). Thus, even if the Court
was compelled by Doyon’s reasonable expectation argument, the face of the contract makes clear
that the Cost Principles in FAR part 31, including the provision making interest on borrowings
costs unallowable, apply to all but the Tariff Rate component of the contract.
Under the reasoning in Servidone, FAR part 31’s cost principles and procedures render
Doyon’s costs of “interest on borrowings” unallowable, impeding its claim for interest. See
Servidone, 19 Cl. Ct. at 383. Though the Court sympathizes with Doyon’s plight, case law makes
it clear that the aim of the “no-interest rule” is to “permit the Government to occupy an
apparently favored position by protecting it from claims for interest that would prevail against
private parties.” See Shaw, 478 U.S. at 315–16 (internal citations and quotations omitted).
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Therefore, the Court concludes that subject matter jurisdiction is lacking because the
United States is shielded by sovereign immunity. Consequently, the United States’ other
arguments in favor of dismissal are moot and will not be addressed.
Conclusion
The Court finds that the United States is shielded by sovereign immunity. Therefore, the
Court GRANTS the United States’ Motion to Dismiss pursuant to RCFC 12(b)(1).
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
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