The Boeing Company v. United States
968 F.3d 1371
| Fed. Cir. | 2020Background
- Boeing held a CAS-covered prime contract (C19) awarded in 2008 and implemented multiple simultaneous cost-accounting practice changes on January 1, 2011. Some changes increased government costs; others reduced them.
- Boeing submitted a GDM proposal estimating net savings to the government from the aggregate changes. The Defense Contract Management Agency (DCMA) designated eight changes as unilateral and representative and asked for cost-impact calculations.
- In December 2016 a DACO applied FAR 30.606, counted only the cost-increasing changes (ignoring contemporaneous cost reductions), and issued a Final Decision requiring Boeing to repay $940,007 plus interest (total $1,064,773); Boeing began paying.
- Boeing sued in the Court of Federal Claims (2017), asserting (1) breach of contract because FAR 30.606 conflicts with the CAS statute’s requirement that aggregate increases not exceed net aggregate increase, and (2) an illegal exaction because the government demanded and took money in violation of 41 U.S.C. § 1503(b).
- The CFC dismissed: it held Boeing waived the contract claim by not objecting pre-award and dismissed the illegal-exaction claim for lack of Tucker Act jurisdiction (concluding the CAS statute was not money-mandating).
- The Federal Circuit reversed and remanded: (1) no waiver because pre-award objection would have been futile (agency could not waive FAR 30.606), and (2) Tucker Act jurisdiction exists for Boeing’s illegal-exaction claim because Boeing paid money and alleged a non-frivolous statutory violation.
Issues
| Issue | Boeing's Argument | United States' Argument | Held |
|---|---|---|---|
| Whether Boeing waived its breach-of-contract challenge by not objecting before award | Pre-award objection would have been futile because FAR 30.606 was mandatory and non-negotiable; agency could not have granted relief | Boeing had opportunity to object pre-award under waiver doctrine (Blue & Gold) and failed to do so | No waiver — futility exception: agency could not have granted relief, so silence did not waive the claim; CFC erred |
| Whether the Court of Federal Claims has Tucker Act jurisdiction over Boeing's illegal-exaction claim absent a "money-mandating" statute | Jurisdiction exists: Boeing paid money and non-frivolously alleges the government took it in violation of the CAS statute; no separate money-mandating showing required for this category of illegal-exaction claim | Norman requires the underlying statutory provision be money-mandating for Tucker Act jurisdiction over an illegal-exaction claim | Jurisdiction exists: Eastport/Testan line controls for paid-exaction claims; Norman does not bar jurisdiction here |
| Whether Boeing should have pursued pre-award judicial remedies (APA or bid protest) before signing | No clear pre-award judicial path was available: CAS routes disputes to the CDA, APA judicial review of CAS-covered functions is statutorily excluded, and ripeness issues were present | Boeing could have sought judicial review pre-award (APA or protest) instead of remaining silent | Government failed to identify a judicial forum that would have clearly afforded a merits ruling pre-award; failure to pursue judicial relief is not a basis for waiver here |
Key Cases Cited
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (pre-award silence can waive later challenges to solicitation or patent contract defects)
- GHS Health Maintenance Org., Inc. v. United States, 536 F.3d 1293 (Fed. Cir. 2008) (no waiver where regulation was non-negotiable; futility exception)
- Eastport S.S. Corp. v. United States, 372 F.2d 1002 (Ct. Cl. 1967) (distinguishes paid-money illegal-exaction claims from other money-demand claims)
- United States v. Testan, 424 U.S. 392 (U.S. 1976) (endorses Eastport framework for Tucker Act claims)
- Norman v. United States, 429 F.3d 1081 (Fed. Cir. 2005) (discusses money-mandating requirement but addressed different factual context)
- American Telephone & Telegraph Co. v. United States, 307 F.3d 1374 (Fed. Cir. 2002) (waiver where agency could have adopted contract form sought by contractor)