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Monday, September 24, 2018

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The Civilian Board of Arrangement Appeals (“CBCA” or “Board”) afresh appear a decision on accretion of government claims for overpayment beneath the Contract Disputes Act (“CDA”). In the case, United Liquid Gas Co. d/b/a United Pacific Energy v. Gen. Servs. Admin., CBCA 5846, United Pacific Energy (“UPE”) appeals a General Services Administration (“GSA”) final accommodation gluttonous overpayments arising beneath four assignment orders that were issued beneath UPE’s GSA agenda arrangement to accommodate propane gas.

In its motion for fractional arbitrary relief, UPE argued that the GSA’s claims for some of those overpayments were time-barred by the CDA’s six-year statute of limitations. The Board sided with UPE, award that anniversary detached overpayment affirmation at affair accrued back the Government overpaid anniversary agnate invoice, all of which occurred added than six years afore GSA issued its final decision. In accomplishing so, the Board alone GSA’s altercation that the claims did not accumulate until the Government issued an ysis address discussing the overpayment issue, which occurred beneath than six years afore GSA issued its final decision.

This accommodation is important because it adds to the bound cardinal of opinions that the Board has appear on affirmation accretion and reinforces accustomed precedent. Our takeaways are below.

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In 2002, UPE entered into a agenda arrangement with GSA to accommodate propane gas at prices accustomed in the schedule. A GSA authoritative application ambassador (“ACO”) was amenable for issuing, administering, and ecology the agenda contract, while a purchasing application ambassador (“PCO”) assigned at the acclimation bureau was amenable for arising assignment orders. In this case, the acclimation bureau was Fort Irwin Application Command (“Ft. Irwin”). Ft. Irwin issued four assignment orders during budgetary years 2011, 2012, 2013, and 2014, which UPE fulfilled, billed for, and was paid for.

As pertinent to UPE’s motion, in November 2010, the Ft. Irwin PCO issued assignment adjustment 1 to acquirement gas during budgetary year 2011. UPE provided gas beneath that adjustment until March 2011, appointment about 144 invoices for payment. Ft. Irwin began advantageous those invoices on January 5, 2011.

GSA conducted several contractor assisted visits (“CAV”) to ysis UPE’s achievement beneath the agenda arrangement and issued several reports:

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The GSA Appointment of the Inspector General (“OIG”) again advised the Ft. Irwin orders. The OIG assured that the Government fabricated overpayments to UPE based on discrepancies amid the assemblage prices articular in UPE’s invoices and GSA’s accustomed assemblage prices. Thus, on June 13, 2017, a GSA ACO issued a final accommodation adopting the OIG’s allegation and ambitious a absolute of $3,321,946 in overpayments fabricated to UPE on the four assignment orders.

The CDA’s statute of limitations provides that “each affirmation by the Federal Government adjoin a architect apropos to a arrangement shall be submitted aural 6 years afterwards the accretion of a claim.” 41 U.S.C. § 7103(a)(4)(A). Accordingly, in its motion for fractional arbitrary relief, UPE argued that GSA’s claims beneath assignment adjustment 1 were abortive because the Government knew that UPE’s appraisement may not accept been adjustable as aboriginal as the May 2010 CAV Report. Alternatively, UPE asserted that any affirmation accompanying to assignment adjustment 1 began to accumulate on the date that UPE submitted its aboriginal invoice, October 18, 2010, or back Ft. Irwin began advantageous the invoices, January 5, 2011. Thus, the Government should accept issued its final accommodation by January 2017, at the actual latest.

In response, GSA asserted that it aboriginal became acquainted of the overcharges beneath assignment adjustment 1 back it issued the October 2011 CAV Report. In authoritative this argument, GSA explained that the May 2010 CAV Address was not accordant because it did not chronicle to assignment adjustment 1 billings. GSA additionally acclaimed that the assignment adjustment 1 invoices were submitted to and paid by the Aegis Accounts and Accounting Service (“DFAS”), not GSA’s accounts office. Thus, if the claims accrued in October 2011, again they would not be time-barred because GSA issued its final accommodation in June 2017.

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The Board assured that GSA’s affirmation for assertive overpayments are time-barred, admitting for hardly altered affidavit than proposed by UPE. The Board accustomed that the Court of Appeals for the Federal Circuit afresh addressed affirmation accretion in Kellogg Brown & Root Servs., Inc. v. Murphy, 823 F.3d 622, 626 (Fed. Cir. 2016). Summarizing that case, the Board acicular out that Federal Acquisition Regulation (“FAR”) 33.201 defines affirmation accretion as “the date back all events, that fix the declared accountability on either the Government or architect and admittance affirmation of the claim, were accepted or should accept been known,” and FAR 2.101 requires a affirmation for the acquittal of money to be declared in “a sum certain.” Citing to antecedent from the CBCA and the Armed Services Board of Arrangement Appeals (“ASBCA”), the Board again common that a affirmation can activate to accumulate afore the appellant adventures the abounding admeasurement of the injury.

The Board accordingly captivated that GSA’s claims for overpayment began to accumulate on January 5, 2011, back the Government overpaid the aboriginal balance beneath assignment adjustment 1, and connected to accumulate as anniversary consecutive balance was paid. The Board reasoned:

At that point in time, the agreement of the [schedule] arrangement acutely put both Ft. Irwin and GSA on apprehension that UPE was overbilling the Government and all contest that anchored the declared liability, specifically, in this case, overpayments in a ‘sum certain,’ were accepted or should accept been known. Government claims connected accruing anniversary time Ft. Irwin overpaid a assignment adjustment 1 balance beneath the [schedule] contract, because every time a acquittal was fabricated on an invoice, the Government knew or should accept accepted of the overpayment and the ‘sum certain’ it was overpaying.

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Therefore, as the final accommodation was issued on June 13, 2017, any claims for overpayments of invoices predating June 13, 2011, i.e., six years earlier, were time-barred.

In its decision, the Board reinforces that overpayment claims can accumulate beneath the CDA’s statute of limitations at the time the Government makes anniversary overpayment, and behindhand of back the Government may affair an ysis address formally acquainted the overpayment.

Relying on Fluor Corp., ASBCA 57852, 14-1 BCA ¶ 35,472 (2013), the Board explained that the “terms” of the agenda arrangement and “the overpayment of anniversary balance establishes accretion because it was at that time that the assignment was ‘performed, billed and paid,’ and the Government knew or should accept accepted of its overpayment claim.” Beneath this scenario, the Government’s CAV letters artlessly were not accordant to authorize the date that the claims accrued. The ASBCA in Fluor Corp. articular that the statute of limitations in that case did not activate to run aloft acquittal of the final balance because the affirmation was a “continuing affirmation inherently affected to actuality burst bottomward into a alternation of absolute audible contest anniversary accepting its own associated damages.”

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Therefore, in the accident a altercation arises apropos a abeyant overpayment, contractors should ensure that they accept authentic acquittal annal and, if applicable, advance the CDA’s statute of limitations as a defense.

Because the CDA’s statute of limitations applies to government and architect claims, the Board’s account in this accommodation could administer back a architect submits a affirmation arising from the Government’s underpayment of an invoice. Thus, contractors would be well-served to yze and accommodate payments anon afterwards cancellation to abstain falling victim to a abeyant statute of limitations aegis years later.

The Board’s accommodation indicates that, beneath a agenda contract, GSA will be captivated to apperceive contemporaneously aloft acquittal that an overpayment has occurred, alike admitting an acclimation bureau absolutely makes the claimed overpayment. Indeed, to adios GSA’s altercation that it did not apperceive about the overpayments at affair until after because they were paid by DFAS, not GSA’s accounts office, the Board articular that GSA should accept accepted of the overpayments aloft acquittal because “GSA was answerable to adviser those payments in its role as the ambassador of the [schedule] program.”

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