When the Federal Circuit issued its 2010 Maropakis decision, many in the government contracts bar immediately grew concerned about the potential application and scope of that decision. However, subsequent Court of Federal Claims (COFC) and Boards of Contract Appeals (BCAs) decisions have generally (and appropriately) placed certain boundaries on Maropakis, and provided some clarification about its scope. The COFC’s decision in Total Engineering is no different, but presents an additional twist.
Pertinently, in Total Engineering, the contractor appealed the government’s affirmative claim seeking payment of approximately $2.3 million due to the contractor’s allegedly defective work, and asserted a “defective specifications” defense. The government filed a motion to dismiss the amended complaint for lack of jurisdiction, arguing that, under Maropakis, the contractor was required to submit an affirmative CDA claim before it could assert its defense. (The government argued that the contractor was really asserting an impracticability claim.) The Court rejected the government’s argument, and distinguished the facts in this case from the situation in Maropakis. Here, the Court found that the contractor was not seeking any separate monetary relief or adjustment to the contract’s terms based on its “defective specifications” defense. Rather, the contractor only was arguing that the government’s design was the root of the alleged defective work, not the contractor’s workmanship – i.e., the contractor merely followed the government’s specifications which resulted in the defective work. Further, the Court noted that “a favorable resolution of [the contractor’s] defense would not result in any separate contract adjustment or monetary relief to [the contractor],” and a result, the Court found that the contractor’s defense was not a claim as defined in FAR 2.101. (It is also worth noting that the contracting officer’s final decision considered and rejected the same “defective specifications” defense.)
Ultimately, this decision is a pragmatic one, and as the Court states, “[t]he CDA does not require the contractor to jump through such an extra hoop and refile its defense to a Government claim as a so-called contractor’s ‘claim’ where it is not seeking any separate monetary relief or contract adjustment.” However, because the application of Maropakis generally is based on the specific facts and “defenses” presented, contractors still must consider whether or not to submit a CDA claim to the contracting officer (or how to frame a CDA claim) in order to preserve/assert certain defenses at the trial level. Total Engineering presents a somewhat unique fact pattern that will not apply in every instance.