Government Contract Litigation Representative Matters

  • represented an advanced technology company when it was threatened with a default termination and negotiated a resolution avoiding termination.
  • secured a significant victory in the United States Court of Appeals for the Federal Circuit that resurrected a $10 million claim involving termination for convenience costs that had been dismissed on statute of limitations grounds. The published opinion was an important development in the understanding of the Contract Disputes Act’s statute of limitations, which is implicated in the vast majority of government contract cases. The Federal Circuit remanded the case back to the ASBCA, and the Army settled for over 90 percent of the claimed amount plus CDA interest after going through discovery.
  • currently representing a contracted concessioner for Yosemite National Park, providing lodging, dining and services within the park since 1993, in a high-profile government contracts dispute at the Court of Federal Claims. Our client’s contract, which expired in 2016, required the National Park Service to require the new concessioner to buy all of the property that our client used to operate at Yosemite. We are suing the government for breach of contract, because the National Park Service failed to require the new concessioner to buy certain property worth millions of dollars, including valuable trademarks, such as The Awahnee Hotel and “Go Climb a Rock.” We won a motion for partial summary judgment, defeating one of the government’s major defenses.
  • secured a victory for an aircraft manufacturer in the 9th Circuit in a case involving the Freedom of Information Act (FOIA). A request was filed by an organization that sought release of the manufacturer’s Comprehensive Small Business Subcontracting Plan, which it submits annually to the federal government to satisfy requirements for government contracting. The Department of Defense (DOD) objected to the release of the full document, contending that portions about the small business program were trade secrets and information about individual employees should be redacted on privacy grounds. Plaintiffs brought an action against the DOD and prevailed on summary judgment. Akin Gump then assumed representation of the company in intervening and appealed the summary judgment ruling. On appeal, the 9th Circuit reversed, upholding the objections on both trade secrets and privacy grounds.
  • represented a private prison contractor at the Civilian Board of Contract Appeals in appealing a final decision denying a claim for increases in prevailing wages under the Service Contract Act worth $6 million to our client. The claim involved a novel argument regarding entitlement to compensation for a Department of Labor-ordered increase in Service Contract Act wages when the contract already included an annual increase in prices. This issue had not been addressed previously by the Boards of Contract Appeals or the Court of Federal Claims. The matter settled.
  • represented a construction company in appeals at the Civilian Board of Contract Appeals related to changes and delays caused by the Department of State during the construction of an embassy compound, which involved classified work. The government settled after discovery.
  • represented the same contractor in the preparation of claims to the Department of State for another embassy project and represented the company in disputes with subcontractors before the AAA under its international arbitration rules.
  • currently representing two contractors with appeals at the ASBCA involving foreign military sales (FMS) projects in Egypt and Bahrain with claims totaling more than $10 million. The first appeal involves delays and disruptions on a construction project on a military base in Egypt (occurring during the 2015 social unrest) paid for under an FMS with the US Army Corps of Engineers. The matter involves unique issues of responsibility for actions of a foreign military during an FMS contract. The other appeal involves changes to a construction project on a U.S. Navy base in Bahrain.
  • defended a solar energy company against claims by its subcontractor arising from a project at the Army base at Fort Huachuca. The claims were brought at the AAA, and the matter was settled favorably after discovery.
  • represented a contractor in protracted negotiations with the Forest Service over a terminated contract. We secured a settlement that included substantial costs incurred after the date of convenience termination.
  • represented an owner (a quasi-public entity in New York State) in terminating a contractor for default, ensuring the surety’s compliance with its performance bond and defending subsequent lawsuits against our client by the original contractor, as well as the completion contractor.
  • represented a construction contractor that was terminated for default on a U.S. Navy contract to build a runway and associated facilities at Clark Airbase in the Philippines. The Navy demanded more than $20 million in default damages. We filed an appeal at the ASBCA seeking to (1) overturn the default termination and have it converted to a termination for convenience; and (2) recover termination for convenience costs, as well as damages based on affirmative claims against the government. We prevailed after a six-week trial in Hawaii. The default termination was reversed and converted to a termination for convenience. We then engaged in extensive analysis and negotiations with the Defense Contract Audit Agency and the Navy to resolve our client’s entitlement to termination for convenience costs. Ultimately, we recovered $7 million in termination costs.
  • represented a service provider terminated for default by the Army. After a week-long trial, the ASBCA ruled in favor of the contractor and granted damages and attorney fees.
  • represented a construction contractor in an appeal to the ASBCA from a final decision denying its claims for delays, defective specifications and other issues relating to the construction of military housing, recreation facilities and medical facilities on a U.S. military base in Qatar. After mediation with a sitting ASBCA judge, the case settled.
  • represented a defense contractor facing (1) a qui tam action in which the government had intervened; (2) a separate Department of Defense (DOD) Inspector General investigation supervised by the Civil Division; and (3) an appeal of a certified claim under the Contract Disputes Act (CDA) before the ASBCA, which involved some of the issues under review by the Civil Division. In order to forestall extended litigation in multiple forums, we convinced the Civil Division lawyers and the agency lawyers handling the ASBCA case to mediate the pending matters globally. Because the mediation involved both contract issues and FCA issues, the mediation was bifurcated into two sessions. The mediation led to a total resolution of all allegations and claims, netting the contractor a substantial recovery under its CDA claims and sparing the contractor at least $2 million in legal fees and costs.
  • advised a minority-owned subcontractor that contracted with a large defense company to provide services in Iraq and Afghanistan installing telecommunications equipment and network services under the State Department’s International Civilian Police training program. We filed suit on behalf of the client, asserting that the prime contractor had engaged in racial discrimination and breached the contract by taking actions to force our client out of the projects. Our trial team won $2 million on directed verdict and an additional $15 million in compensatory and punitive damages after a two-week jury trial in federal court in the Eastern District of Virginia.
  • acquired a failing group of savings and loans from the government in 1988 upon the government’s promise that our client would receive certain tax benefits. However, Congress subsequently passed legislation that retroactively denied the tax benefits. We filed suit in the Court of Federal Claims alleging breach of contract and regulatory taking. The Court awarded summary judgment on liability on the ground that the government breached the implied covenant of good faith and fair dealing by enacting legislation targeted at eliminating the tax benefits. After extensive factual and expert discovery on damages, our client was awarded $50 million in damages on summary judgment. The judgment was upheld on appeal.
  • represented a BlueCross BlueShield health care plan against a government claim for $10 million for failure to obtain and pass through certain discounts from its subcontractors to a union health care plan for which it served as underwriter. The government’s claim arose from an administrative audit that itself grew out of an FCA qui tam case that our lawyers had successfully defended years earlier. Our lawyers succeeded in having the government’s claim declared null and void by the ASBCA on the ground that the government lacked privity of contract with the underwriter and that none of the exceptions to the privity rule applied.
  • participated in litigation by a NASA contractor in the Court of Federal Claims and the Federal Circuit that resulted in an award of $102 million to the contractor for the government’s breach of a contract to launch satellites on the Space Shuttle.
  • represented a major American heavy vehicle and contract automotive manufacturer in an appeal at the ASBCA that involved unique issues concerning the Federal Acquisition Regulation (FAR) commerciality and cost or pricing data provisions and sponsored claims. The government was looking to recover millions of dollars from our client for alleged overcharges by its armor subcontractor. We reached a favorable settlement with the government.