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United States Court of Appeals for the Federal Circuit
July 18, 2022, Decided
Hughes, Circuit Judge.
Zafer Construction Company appeals a decision of the United States Court of Federal Claims dismissing Zafer's complaint for failing to state a cause of action under Court of Federal Claims Rule 12(b)(6). The Court of Federal Claims determined that Zafer's request for equitable adjustment is not a claim under the Contract Disputes Act and that Zafer's subsequent claim is time barred. Because Zafer's request for equitable adjustment is a claim, we reverse and remand.
In June 2008, the United States and Zafer agreed to a $40 million contract to design and build water systems on the Bagram Air Base in Afghanistan. Zafer completed the project and submitted a request for equitable adjustment on September [*2] 10, 2013, which it timely amended on December 17, 2014. In its 167-page request, Zafer alleged that the government increased the cost of the project by causing delays and modifying the contract. Zafer's detailed request sought $6.7 million and provided a breakdown of the reasons for the claimed amounts. Zafer submitted its request "so that the parties c[ould] engage in immediate discussions and negotiations to mutually amicably resolve [its] request." Appx46 (request for equitable adjustment). And Zafer certified its request in accordance with the claim-certification requirement of 41 U.S.C. § 7103(b)(1), going beyond what is required by 48 C.F.R. § 252.243-7002(b) to certify mere requests for equitable adjustment.
The parties negotiated for four-and-a-half years but did not fully resolve Zafer's request. On February 7, 2018, Zafer asked to convert its request for equitable adjustment into a claim. The contracting officer reviewed Zafer's claim and determined that most of it is time barred under 41 U.S.C. § 7103(a)(4)(A) because much of the government's alleged conduct had transpired more than six years before Zafer had converted its request into a claim.
Zafer sued in the Court of Federal Claims. The Court of Federal Claims found that Zafer's claim had "accrued [*3] no later than August 1, 2011," meaning Zafer had to have submitted a claim by August 1, 2017 for the claim to be timely. Appx10. Although Zafer had submitted a request for equitable adjustment in December 2014, the court determined that because this document "lacks a request for a final decision" and "asks for negotiations," it is not a claim but a request for negotiations. Appx9-10. And because Zafer converted its request for equitable adjustment into a "proper" claim after the 2017 deadline, the court dismissed Zafer's complaint for failure to state a cause of action upon which relief can be granted under the court's Rule 12(b)(6). Appx10-11.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2022 U.S. App. LEXIS 19704 *; __ F.4th __
ZAFER CONSTRUCTION COMPANY, AKA ZAFER TAAHHUT INSAAT VE TICARET A.S., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
Prior History: [*1] Appeal from the United States Court of Federal Claims in No. 1:19-cv-00673-EGB, Senior Judge Eric G. Bruggink.
Disposition: REVERSED AND REMANDED.
contracting, equitable adjustment, contractor, final decision, negotiate, requesting, settlement, certification, parties, wording, notice, submitting, disputes, mutually
Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Courts, Courts of Claims, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Public Contracts Law, Dispute Resolution, Contract Disputes Act, Types of Contracts, Cost Contracts, Contract Provisions, Changes Clauses, Bids & Formation, Authority of Government Officers, Contracting Officers