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Minesen Co. v. McHugh

United States Court of Appeals for the Federal Circuit

March 2, 2012, Decided

2010-1453

Opinion

 [*1333]  Reyna, Circuit Judge.

The Minesen Company ("Minesen") appeals the final decision of the Armed Services Board of Contract Appeals ("ASBCA" or "Board") which granted the motion to dismiss of the United States Army's Morale, Welfare, and Recreation Fund ("the Fund"). Minesen has been under contract with  [**2] the Fund since 1993 to build and operate a hotel facility at a military base on Oahu Island, Hawaii. With eighteen years remaining on the agreement, the ASBCA determined that the Fund breached the core of the contract and the parties entered the quantum phase of the dispute. While in the quantum phase, Minesen filed a separate complaint alleging that the Fund had done nothing to cure its ongoing breach. The ASBCA dismissed Minesen's second complaint as duplicative of the first breach of contract action. Minesen appeals the ASBCA dismissal of its second complaint. Because we find that Minesen voluntarily waived its right to appeal to this court under its negotiated contract with the Fund, we dismiss.

I. Background

Minesen, a small business from Denver, Colorado, was created for the purpose of acquiring and fulfilling government contracts. In January of 1993, after several years of negotiation, Minesen and the Fund entered into Contract No. NAFBA3-93-C-0001 ("the Contract") to create accommodations for travelling military personnel. The Contract provided that Minesen would construct and operate, for a term of thirty-two years, a "transient lodging facility" at Schofield Barracks in central  [**3] Oahu. Joint Appendix ("J.A.") 272. Schofield Barracks is an 18,000 acre site twenty-three miles northwest of Honolulu, and is the largest Army installation in Hawaii. The Minesen lodging facility, to be built on four acres leased from the government, became known as the Inn at Schofield Barracks ("the Inn"). The Inn was to feature 184 rooms with kitchenettes, as well as other hotel amenities such as a vending area, guest laundry, playground, convenience store, and deli. Id. On a secure installation, the Inn would offer lodging only to eligible active and temporary military personnel, their families, and qualifying veterans. Under the Contract, Minesen's lease and operation of the Inn terminates in 2026. Id.

In addition to revenue generated operating the facility, Minesen's consideration for the bargain was that the Inn was officially deemed "government quarters" under the Joint Federal Travel Regulation ("JFTR"). Id. at 274. This designation was significant because it required travelling military personnel to patronize the Inn or else forfeit reimbursement for lodging costs. The Contract stated:

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671 F.3d 1332 *; 2012 U.S. App. LEXIS 4376 **; 2012 WL 678150

THE MINESEN COMPANY, Appellant, v. JOHN MCHUGH, SECRETARY OF THE ARMY, Appellee.

Prior History:  [**1] Appeal from the Armed Services Board of Contract Appeals in No. 56346, Administrative Judge Michael T. Paul.

Appeal of -- Minesen Co., 2010 ASBCA LEXIS 52 (A.S.B.C.A., July 16, 2010)

Disposition: DISMISSED.

CORE TERMS

contracting, contractors, disputes, appeals, parties, waive, contract provision, decisions, right to appeal, Wunderlich Act, contract dispute, judicial review, government contract, argues, Tucker Act, public policy, duplicative, provisions, damages, boards, final decision, Travel, merits, unenforceable, standard of review, executive agency, The Wunderlich Act, nonappropriated, contractual, negotiation

Public Contracts Law, Dispute Resolution, Jurisdiction, Civil Procedure, Jurisdiction, Subject Matter Jurisdiction, General Overview, Constitutional Law, The Judiciary, Contracts Law, Contract Conditions & Provisions, Waivers, Governments, Legislation, Statutory Remedies & Rights, Administrative Law, Judicial Review, Reviewability, Contract Disputes Act, Contract Provisions, Trials, Jury Trials, Right to Jury Trial, Courts, Courts of Claims, Appeals, Reviewability of Lower Court Decisions, Preservation for Review, Standards of Review