July 16, 2020 Public Contract Law Journal

The Sovereign Acts Defense & Agency Deference: The 2019 Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition - Government Brief

by Raymond Richards & Justin Terry

The Honorable Jeri Somers, Chief Judge of the U.S. Civilian Board of Contract Appeals, drafted the problem for the Arnold & Porter LLP Government Contracts Moot Court Competition. Awards for Best Brief went to the government. At the time of the competition, Mr. Hebdon, Mr. Richards, Mr. Terry, and Ms. Villalta were J.D. candidates at The George Washington Law School (GW Law). The Moot Court Experiential course was co-taught by Judge Somers and Karen D. Thornton, Director of GW Law’s Government Procurement Law Program. GW Law thanks its distinguished and outstanding volunteer judges for challenging and mentoring the competitors.

United States Court of Appeals for the Federal Circuit

THE UNITED STATES OF AMERICA, Appellant
v.
ACB CONSTRUCTION, INC., Appellee

APPEAL FROM THE UNITED STATES COURT OF FEDERAL CLAIMS IN NO.18-2994C, SENIOR JUDGE CHAMBERLAIN HALLER

BRIEF FOR THE DEFENDANT-APPELLANT

RAYMOND RICHARDS
JUSTIN TERRY
COMMERCIAL LITIGATION BRANCH
CIVIL DIVISION
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Ave. NW
Washington, D.C. 20530
(202) 514-2000

Attorneys for Defendant-Appellant
United States of America

March 17, 2019

Statement of Jurisdiction

On September 18, 2012, ACB Construction, Inc. (ACB) appealed from the final decision of a Contracting Officer (CO) in the United States Court of Federal Claims (COFC). Pursuant to 28 U.S.C. § 1491(a)(2) (2012) (the Tucker Act), the COFC has jurisdiction over all issues arising under the Contracts Disputes Act (CDA), codified at 41 U.S.C. §§ 7101–7109. See 41 U.S.C. § 7104(b)(1) (2012). As a claim arising under the CDA, ACB’s appeal of the CO’s final decision was properly filed in the COFC. See id. That court reviews such claims de novo. See id. § 7104(b)(4).

After reviewing ACB’s claim, the COFC held that ACB was entitled to payment for additional costs incurred during its performance of the relevant contract. Specifically, while setting base access policy was held to be a sovereign act, the COFC rejected the base commander’s interpretation of that policy. R. at 1. The United States of America (the Government) appeals the COFC decision. Since this Court has exclusive jurisdiction over appeals from a final decision of the COFC, the Government seeks relief from this Court. See 28 U.S.C. § 1295(a) (3); see also Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1373 (Fed. Cir. 2000).

Statement of Related Cases

We know of no other appeal in or from this action that previously was before this Court or another appellate court under the same or similar title, and we know of no appeals before this Court that may directly affect or be affected by the decision in this appeal.

Statement of the Issues

I. Sovereign Acts Doctrine. Did the COFC correctly hold that the base commander’s change to base access policy was a permissible sovereign act?

II. Administrative Procedure Act. Did the COFC err by rejecting the base commander’s interpretation of her own base’s access policy?

Statement of the Case

I. Nature of the Case

The Government appeals from a final decision of the COFC. The COFC held that ACB is entitled to $575,122.33 for additional costs incurred by its subcontractor because of the base commander’s interpretation of the Air Force base access regulation. R. at 1. The COFC found that the policy change was permissible as a sovereign act, but that the base commander’s interpretation of the base access policy was not entitled to judicial deference. R. at 1. The Government argues that the COFC was correct in holding that the update to base access policy was permissible as a sovereign act, but that the COFC applied an erroneous legal analysis to the issue of regulatory interpretation. Consequently, we urge this Court to reverse the COFC on the second issue presented.

II. Course of the Proceedings

On October 29, 2008, ACB’s subcontractor, SOS Construction, Inc. (SOS), filed a request for equitable adjustment (REA), seeking $575,122.23 for additional costs incurred during its performance of the contract at issue. R. at 10. Acting on behalf of SOS, on June 25, 2009, ACB requested a final decision on its October 2008 REA. R. at 11. Ultimately, the CO’s final decision on the claim was deemed denied, and on September 18, 2012, ACB filed an appeal from the CO’s final decision in the COFC. R. at 11. Reviewing the claim de novo, the COFC held that ACB was entitled to payment for SOS’s additional costs incurred because the base commander’s interpretation of the base access policy was flawed in light of the convict labor clause incorporated into the relevant contract. R. at 15. The Government timely appeals the decision of the COFC and asks this Court to reverse the COFC on the latter of the issues presented.

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