Justia Aerospace/Defense Opinion Summaries

Zafer, an Ankara, Turkey, contractor, and the Army Corps of Engineers (USACE) entered into a firm-fixed-price contract to construct the MILCON Support Facility at the Bagram Air Force Field in Afghanistan. Zafer was responsible for delivering materials to the site, and assumed the risk “for all costs and resulting loss or profit.” After issuing notice to proceed, USACE recognized that it could not make the project site available immediately and increased the contract price and set a new completion date. In November 2011, Pakistan closed its border from the seaport city of Karachi along the land routes into Afghanistan in response to a combat incident with the U.S. and NATO. The route remained closed for 219 days, Zafer notified USACE that the closure would greatly impact its delivery of materials and requested direction on how to proceed. USACE replied that the closure was “purely the act of Pakistan governmental authorities,” that the U.S. government was “not responsible” and denied further compensation. Zafer subsequently, repeatedly, asked for payment for additional costs. In 2013, Zafer submitted an unsuccessful request for an equitable adjustment. The contracting officer found no evidence supporting a constructive change claim. The Claims Court granted USACE summary judgment. The Federal Circuit affirmed. Zafer failed to designate specific facts to establish a constructive change claim based on either a constructive acceleration theory or on a government fault theory. View "Zafer Taahhut Insaat v. United States" on Justia Law

The National Federation of Federal Employees Local 1442 filed a group grievance on behalf of 138 NFFE bargaining unit employees at Letterkenny Army Depot (LEAD); Local 2109 filed two grievances on behalf of all of bargaining unit employees at Watervliet Arsenal (WVA). In both grievances, the Union challenged the furloughing of bargaining unit employees for six discontinuous days between July and September in Fiscal Year 2013. The furloughs were the result of an automatic process of federal agency spending reductions called “sequestration.” Arbitrator Kaplan ruled that the furloughs of the employees at LEAD were in accordance with law. Months later, Arbitrator Gross ruled that the furloughs of WVA security employees were not in accordance with law, but that the furloughs of non-security bargaining unit employees at WVA were in accordance with law. The Federal Circuit upheld both decisions. Arbitrators Kaplan and Gross had substantial evidence before them demonstrating that the furlough decisions were reasonable management solutions to the financial restrictions placed on DOD by the sequester, thus promoting the efficiency of the service. View "Nat'l Fed'n of Fed. Employees v. Dep't of the Army" on Justia Law

In a 2011 memorandum, the Secretary of the Navy explained that the Navy would be “challenged to reduce enlisted manning to meet future planned end strength controls due to record high retention in the current economic environment.” To address these concerns and to “optimize the quality” of the Navy, the Secretary initiated an Enlisted Retention Board (ERB) to identify 3,000 sailors for separation. The Navy notified all personnel, outlined a timeline, and identified particular pay grades and occupational classifications or specialties that would be subject to review. Sailors were informed that if their job rating was over-manned and slated for review, they could apply for conversion to an undermanned rating that would not be subject to review. The Navy also published the quotas for each overmanned rating that would be subject to the ERB to give the sailors information about competition among the different ratings and to enable them to make informed decisions about their careers. The ERB selected 2,946 sailors for honorable discharge. A putative class of about 300 of those discharged challenged their dismissal and sought back pay. The Court of Federal Claims dismissed the merit-based claims as nonjusticiable and denied remaining claims on the administrative record. The Federal Circuit affirmed. View "Anderson v. United States" on Justia Law

Following the 1941 attack on Pearl Harbor, each of the Oil Companies entered into contracts with the government to provide high-octane aviation gas (avgas) to fuel military aircraft. The production of avgas resulted in waste products such as spent alkylation acid and “acid sludge.” The Oil Companies contracted to have McColl, a former Shell engineer, dump the waste at property in Fullerton, California. More than 50 years later, California and the federal government obtained compensation from the Oil Companies under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, for the cost of cleaning up the McColl site. The Oil Companies sued, arguing the avgas contracts require the government to indemnify them for the CERCLA costs. The Court of Federal Claims granted summary judgment in favor of the government. The Federal Circuit reversed with respect to breach of contract liability and remanded. As a concession to the Oil Companies, the avgas contracts required the government to reimburse the Oil Companies for their “charges.” The court particularly noted the immense regulatory power the government had over natural resources during the war and the low profit margin on the avgas contracts. View "Shell Oil Co. v. United States" on Justia Law