Thomas J. Davis, Inc.
ASBCA No. 62634
| A.S.B.C.A. | Jul 1, 2021Background
- Contract awarded April 10, 2012 to Thomas J. Davis, Inc. (TJD) to design an aircraft corrosion control facility at Osan AB, Korea, including a Restoration Bay intended for sanding/painting aircraft.
- Contract required iterative design submittals (10%, 30%, 90%, 95%, 100%) and incorporated FAR clauses making the A‑E contractor responsible for professional quality and technical accuracy.
- TJD’s 30% design (June 2012) showed painting facilities; by August 2012 TJD changed its proposed exhaust/filtration approach (from roof-mounted three‑stage filters to floor‑mounted dust collectors) and provided product brochures.
- The government’s administrative reviewers did not, according to government declarations, recognize that the revised filtration system precluded painting; Bio‑Environmental rejected the ventilation system on Sept. 28, 2017 after airflow tests.
- Contracting Officer issued a claim on Nov. 20, 2019 seeking recovery for alleged defective design; TJD moved for summary judgment arguing the claim was time‑barred under the Contract Disputes Act because it accrued more than six years earlier.
- The Board denied TJD’s summary‑judgment motion, finding genuine disputes of material fact about when the government knew or should have known of the alleged design defects.
Issues
| Issue | TJD's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the government’s claim is time‑barred under the CDA (6‑year accrual rule) | Accrual occurred in 2012 (or by Nov. 19, 2013) because TJD’s submittals and August 2012 filter info should have put the government on notice | Government did not know and could not have known of the defect until 2017 (airflow tests/Bio‑Environmental rejection); CORs were not experts and relied on TJD as the specialist | Denied summary judgment—triable factual dispute whether claim accrued before Nov. 19, 2013 |
| Whether the government directed TJD to remove painting capability from the Restoration Bay | TJD claimed government personnel instructed removal between 30% and 90% submittals | Government produced affidavits and meeting minutes showing the painting requirement remained and no such direction was given | Board found TJD’s claim unsupported and contradicted; no evidence government directed removal |
| Whether TJD’s 2012 plans and filter brochures made the defect objectively obvious to government reviewers | The brochure/spec submissions should have alerted any reviewer that the dust‑collector approach was incompatible with painting | Plans and attachments did not plainly show inability to support painting; reviewers lacked filtration expertise and reasonably relied on TJD’s technical responsibility | Triable factual dispute remains; cannot resolve as a matter of law on summary judgment |
| Whether subsequent actions (e.g., 2016 contract modification) reset accrual or justify later accrual date | (TJD) argues accrual earlier; (Gov’t) suggested later events could be relevant | Government proposed 2016 modification might mark accrual; Board saw no basis to retroactively change accrual date if defect was recognizable earlier | Board rejected using the 2016 modification to retroactively alter the accrual analysis for statute‑of‑limitations purposes |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant bears burden to show absence of genuine issue of material fact on summary judgment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (non‑movant must present specific facts showing a genuine factual dispute)
- First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968) (summary judgment standards and requirement to show genuine issue)
- United States v. Diebold, Inc., 369 U.S. 654 (1962) (significant doubt on factual issues resolved for non‑movant)
- Mingus Constructors v. United States, 812 F.2d 1387 (Fed. Cir. 1987) (applying summary judgment standards in government contract disputes)
- Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014) (CDA claim accrual and final decision timing)
- Kellogg Brown & Root Servs., Inc. v. Murphy, 823 F.3d 622 (Fed. Cir. 2016) (accrual determined by FAR, contract terms, and case facts)
- Electric Boat Corp. v. Sec’y of the Navy, 958 F.3d 1372 (Fed. Cir. 2020) (accrual analysis under FAR 33.201)