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I found a case decided in the Court of Appeals for the Federal Circuit called Guarantee Company of North America v. Ikhana, LLC, 2018-1394, October 29, 2019.  It involved a surety's rights.  In general, the Court uses precedent from two cases to reach its opinion on p. 7 of the opinion.  On the next page, two pf the judges issue a concurring opinion and point out their concerns with the court's precedents.  These 2 judges write that:  The instant case is an appropriate vehicle to review our precedent and to resolve a question of exceptional importance, as the issue is raised squarely by these facts.  It is worth thinking about.  The excerpt below is the jist of the two judges explanation and it appears on p. 10 and 11 of their opinion.

Quote

A surety must pick up where the contractor left off in the defaulted contract; in any normal surety relationship, this could include addressing pertinent pending litigation involving the contractor. Because of Admiralty and Fireman’s Fund, a surety of a government contract has its hands tied when it comes to resolving ongoing litigation against the Government and executing performance. Indeed, this is the dilemma that faced GCNA following the Government’s termination of Ikhana from the contract: Ikhana had filed claims against the Government for its default termination, the Government sued GCNA on its performance bond, subcontractors sued GCNA on the payment bond, and GCNA stepped in to ensure the contract was executed despite the default. J.A. 2. To do so, GCNA entered into a settlement agreement with the Government to resolve the Government’s claim on the performance bond. J.A. 257. GCNA tendered a new contractor to complete the work. J.A. 4. At the same time, GCNA agreed to dismiss Ikhana’s appeal against the Government and the Government agreed to release GCNA from all liability relating to the performance and payment bonds. J.A. 4. This plan was stymied, however, as GCNA was denied standing before the ASBCA. J.A. 6.

The facts of this case are representative of the nature of a surety’s work—bringing efficient resolution to contract disagreements, assuming financial risk, and ensuring execution—and of the necessity for granting sureties the legal rights they need to ensure speedy resolutions. The significance of this negotiating tool should not be understated. Lengthy delays in public projects could be problematic, expensive, and even dangerous. Moreover, sureties for government contracts may recognize the downstream problems of our precedent and either opt out of providing the service or, in recognizing the potential for heightened financial risk, charge a higher rate for their services. Whatever the outcome, the overall cost of doing business will be higher for all parties and U.S. taxpayers will be left paying the tab.

 

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So the two justices agreed that the original contractor pending Appeal has to be settled in the current jurisdiction (ASBCA), not the Court but that the Surety should have standing as the contractor after the Takeover Agreement for claims or claimable acts arising prior to the Takeover Agreement? 

Otherwise, I don’t understand what the other two judges “concurred“ with in the the Court Decision.

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