On June 6, 2018, the Civilian Board of Contract Appeals (“Board”) denied the VA’s motion to strike certain counts of a contractor’s complaint challenging a termination for default. The contractor had previously filed a Contract Disputes Act claim alleging that the VA acted in bad faith, delayed and prevented contract performance and repudiated the contract. The contractor appealed the contracting officer’s final decision denying its claim. The contractor then filed a complaint at the Board of Contract Appeals, asserting among other things, that the VA breached its duty of good faith and fair dealing by failing to give the contractor a fair opportunity to compete for additional work. The VA moved to dismiss the contractor’s claim based on the violation of the duty of good faith and fair dealing because this legal theory was not included in the contractor’s CDA claim.
The Board set forth the following standard of review to resolve this dispute:
The Board may not consider new claims a contractor failed to present to the contracting officer. Lee’s Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361, 1369 (Fed. Cir. 2017) (citing Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987)). “A claim is new when it ‘present[s] a materially different factual or legal theory’ of relief.” Id. (quoting K-Con Building Systems, Inc. v. United States, 778 F.3d CBCA 5907 3 1000, 1006 (Fed. Cir. 2015)). A claim before the Board is not required to rigidly adhere “to the exact language or structure of the original administrative CDA claim” presented to the contracting officer. Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003). It is enough that the claim to the contracting officer and the claim before the Board “arise from the same operative facts, claim essentially the same relief, and merely assert differing legal theories for that recovery.” Id. “Materially different claims ‘will necessitate a focus on a different or unrelated set of operative facts.’” Lee’s Ford, 865 F.3d at 1369 (quoting Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)).
Applying the above rule of law, the Board denied the VA’s motion to strike and found that the claim based on breach of the duty of good faith and fair dealing arises from the same operative facts as the breach of contract claim. The Board also noted that the contractor is seeking the same monetary damages as in the CDA claim. The Board therefore found that it had jurisdiction.
Walker Development & Trading Group, Inc. v. Department of Veterans Affairs, CBCA 5907 (June 6, 2018)
