Certified Claim Not Necessary to Appeal LD Assessment

04/02/2012

The Civilian Board of Contract Appeals recently ruled that it had jurisdiction over a Department of Agriculture contractor’s challenge to a liquidated damages assessment even though the contractor failed to submit a certified claim (National Fruit Product Co. Inc. v. Department of Agriculture, CBCA, No. 2445, 3/26/12). The Government had argued that the Board lacked jurisdiction because NFPC had not “certified” a claim for the LD challenge amount, apparently trying to take advantage of newer precedent respecting board jurisdiction.

The Board rejected that argument, noting that the Contracting Officer had issued the LD assessment as part of a final decision that NFPC timely appealed. On the merits, though, the Board rejected NFPC’s appeal, finding that the Government had cause to assess the LDs because NFPC failed to mitigate. But the Board did modify the LD amount, and made award to NFPC for that reduction.

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