Contract performance

Writing for the majority, Judge Clevenger summarily rejected the COFC determination that the 28 December 2000 judgment was a not a final judgment under section 1961(c)(2). (1591) For Judge Clevenger, the key issue before the court was whether section 1961(c)(2) unambiguously waived sovereign immunity for post-judgment interest on "all" judgments of the Federal Circuit. After an exhaustive analysis of the doctrine of sovereign immunity and the reach of section 1961(c)(2), Judge Clevenger concluded the section did not unambiguously waive sovereign immunity in this case. Central to Judge Clevenger's conclusion was the fact the express language of section 1961(c)(2) cross-referenced four distinct statutory provisions. (1592) After attempting to untangle the interaction of the various statutes referenced by section 1961(c)(2), Judge Clevenger concluded section 1961(c)(2) was "subject to plausible readings under which Congress has not waived sovereign immunity for post-judgment interest on judgments of the Federal Circuit against the United States that the United States does not seek to have reviewed in the Supreme Court." (1593)

Judge Prost respectfully dissented from the majority's opinion. To Judge Prost, "there is only one plausible reading of the statutory language at issue. It is the reading that maintains that 'interest shall be allowed on all final judgments against the United States in the United States Court of Appeals for the Federal Circuit, at the rate provided in [[section] 1961(a)] and as provided in [ [section] 1961(b)].'" (1594)

ASBCA: Conversion of T4D to T4C Entitles Contractor To EAJA Fees

The ASBCA determined that a contractor who prevailed in converting a termination for default into a termination for convenience is entitled to collect Equal Access to Justice Act (EAJA) (1595) fees. In American Service & Supply, Inc., (1596) the Air Force awarded a contract to American Services to replace two air compressors and their gas engines. During performance, the government required American Services test the engine skids separately. American Services, believing that this requirement was not a contractual requirement, agreed to do so but requested an extra five months to complete contract performance. The agency, believing that the contract required skid testing, refused to extend the performance period. (1597)

The agency terminated the contract for default after both parties agreed that American Services would not be able to complete the skid testing and the remainder of the contract on time. (1598)

American Services contested the termination for default and prevailed. The ASBCA converted the termination for default to a termination for convenience. After this ruling, American Services requested EAJA fees. It argued that it was a prevailing party in the termination litigation and the government's position was not substantially justified. (1599)

The Air Force countered that its decision to terminate American's contract for default was substantially justified and therefore American Services was not entitled to collect EAJA fees. In other words, the Air Force argued that its decision is "substantially justified [because] a reasonable person could think it correct [and the decision] has a reasonable basis in law and fact." (1600)