The Contract Disputes Act requires a contractor to present a claim to the contracting officer “within 6 years after the accrual of the claim.” 41 U.S.C. 7103(a)(4)(A). But a claim doesn’t typically accrue until the contractor should have known that it was damaged by the Government.

As discussed below, some legal claims might not arise until a contractor takes discovery in an appeal already before the Civilian Board of Contract Appeals.

The contract at issue in Amec Foster Wheeler Env’t & Infrastructure, Inc., CBCA 5168 et al. (February 27, 2019) related to construction work on the historic Alcatraz prison in San Francisco Bay. In particular, the relevant task order, awarded in September 2011, required Amec Foster to perform stabilization and repair work to the underground citadel and shower rooms. Amec Foster alleged that it substantially completed the project in June 2014.

Initially, Amec Foster appealed the contracting officer’s denial of a certified claim for an equitable adjustment and a 521 day extension. Relying on the theories of constructive change and breach of the duty of good faith and fair dealing, Amec Foster alleged that the National Park Service provided inadequate specifications and significantly changed the work.

After discovery (discovery is a process by which one party to litigation obtains information from the other party) was conducted in this first appeal, Amec Foster submitted a new certified claim to the contracting officer for monetary relief largely overlapping with its appeal. The contracting officer denied the claim, and Amec Foster appealed. It raised two new theories of recovery: superior knowledge and negligent estimate. Specifically, Amec Foster alleged that NPS knew, or should have known, that the prison was “crumbling ” faster than bidders were told and that the contractor would need to replace more structural beams (and use beams with more extensive shoring) than the statement of work indicated.

NPS argued that Amec’s superior knowledge and negligent estimate claims were barred by the statute of limitations. In NPS’s view, Amec Foster knew, when it began work in January 2012, that the prison’s condition allegedly was not accurately reflected in the solicitation. With respect to the superior knowledge claim, NPS further argued that Amec Foster could have established that NPS knew of the prison’s condition simply because NPS owned and operated the facility. And, with respect to the negligent estimate claim, NPS argued that Amec Foster should have discovered misestimates when it was actively engaged in developing a shoring plan in early 2012.

CBCA, however, agreed with Amec Foster, holding that Amec Foster plausibly didn’t have enough information to assert its two new claims before taking discovery in the first appeal. It further refused to accept a more general legal proposition: that a contractor must plead every possible theory when submitting a claim to a contracting officer.

[NPS’s] contention that Amec could have asserted superior knowledge and negligent estimate claims as soon as it started work in 2012 implies that a contractor should consider asserting every conceivable legal theory of relief as soon as it encounters an unforeseen condition. We cannot endorse that view. As [NPS] acknowledges, Amec’s claims at issue here differ in their operative facts from constructive change or differing site conditions claims. . . . A contractor cannot in good faith assert a claim based on withholding of superior knowledge or similarly misleading conduct unless the contractor has a solid evidentiary basis to allege such conduct.

So, if you have claims against the Government, raise theories of recovery that you have facts to support. If, later, you discover facts supporting additional theories, then you may be able to lump those in with your dispute. CBCA doesn’t expect, or even encourage, you to plead every theory under the sun when filing a claim or an appeal. But, of course, if you have facts to support a legal theory, and fail to raise it, you may be barred from raising down the road.

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