United States Court of Appeals 

for the Federal Circuit ______________________

THE BOEING COMPANY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2019-2148

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:17-cv-01969-PEC, Judge Patricia E. CampbellSmith.

______________________

Decided: August 10, 2020

______________________

MICHAEL W. KIRK, Cooper & Kirk, PLLC, Washington, 

DC, argued for plaintiff-appellant. Also represented by 

CHARLES J. COOPER, JOHN DAVID OHLENDORF; SUZETTE 

DERREVERE, The Boeing Company, Arlington, VA; SETH 

LOCKE, Perkins Coie, LLP, Washington, DC. 

 ERIN MURDOCK-PARK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD,

ROBERT EDWARD KIRSCHMAN, JR. 

 ______________________

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2 THE BOEING COMPANY v. UNITED STATES

Before MOORE, TARANTO, and CHEN, Circuit Judges.

TARANTO, Circuit Judge.

From 1992 to 2015, the Boeing Company entered into 

numerous contracts with the United States Department of 

Defense, among them the contract at issue in this case. In 

2011, Boeing permissibly changed multiple cost accounting 

practices simultaneously; some of the changes raised costs 

to the government, whereas others lowered costs to the government. In late 2016, the Defense Contract Management 

Agency, invoking Federal Acquisition Regulation (FAR) 

30.606, 48 C.F.R. § 30.606, determined the amount of the 

cost-increasing changes for the present contract and demanded that Boeing pay the government that amount plus 

interest. Boeing began doing so. 

In 2017, Boeing filed an action in the Court of Federal 

Claims to seek recovery of the amounts thus paid, asserting that the government, in following FAR 30.606, committed a breach of contract and effected an illegal exaction. 

Boeing’s core argument, applicable to both claims, is that, 

although FAR 30.606 undisputedly required the Defense 

Department to act as it did, that regulation is unlawful—

principally because it is contrary to 41 U.S.C. § 1503(b) 

(and also for procedural reasons). According to Boeing, 

that provision of the Cost Accounting Standards (CAS) 

statute, which is incorporated into the contract at issue, requires that simultaneously adopted cost-increasing and 

cost-lowering changes in accounting practices be considered as a group, with the cost reductions offsetting the cost

increases. Boeing argues that, by following FAR 30.606’s 

command to disregard the cost-lowering changes and bill 

Boeing for the cost-increasing changes alone, the government unlawfully charged it too much.

The trial court held that Boeing had waived its breach 

of contract claim by failing to object to FAR 30.606 before 

entering into the relevant contracts. Boeing Co. v. United 

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THE BOEING COMPANY v. UNITED STATES 3

States, 143 Fed. Cl. 298, 307–15 (2019). The trial court also 

determined that it lacked jurisdiction to consider Boeing’s

illegal exaction claim because the claim was not based on a 

“money-mandating” statute. Id. at 303–07. We now reverse and remand, concluding that the trial court misapplied the doctrine of waiver and misinterpreted the 

jurisdictional standard for illegal exaction claims.

I

A

The federal government has long entered into contracts 

under which amounts it pays to contractors are based on 

the contractors’ costs in performing the contracts. See, e.g., 

Lockheed Aircraft Corp. v. United States, 375 F.2d 786 (Ct. 

Cl. 1967). In an effort to regularize cost-accounting practices relevant to such contracts, the Office of Federal Procurement Policy Act Amendments of 1988 (the CAS Act)

established the CAS Board within the Office of Federal 

Procurement Policy. Pub. L. 100-679, § 5, 102 Stat. 4055, 

4058–63 (1988) (originally codified at 41 U.S.C. § 422, but

now codified at 41 U.S.C. §§ 1501–06). The CAS Act gave

the Board “exclusive authority to prescribe, amend, and rescind cost accounting standards.” 41 U.S.C. § 1502(a)(1). 

Standards promulgated by the Board are “mandatory for 

use by all executive agencies and by contractors and subcontractors in estimating, accumulating, and reporting 

costs in connection with the pricing and administration of, 

and settlement of disputes concerning, all negotiated prime 

contract and subcontract procurements with the Federal 

Government in excess of the amount set forth in section 

2306a(a)(1)(A)(i) of title 10,” which refers to contracts 

worth more than $2 million. Id., § 1502(b)(1)(B); see 10 

U.S.C. § 2306a(a)(1)(A)(i).

The CAS Act directed the Board to establish regulations “requir[ing] contractors and subcontractors as a condition of contracting with the Federal Government to . . . 

agree to a contract price adjustment, with interest, for any 

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4 THE BOEING COMPANY v. UNITED STATES

increased costs paid to the contractor or subcontractor by 

the Federal Government because of a change in the contractor’s or subcontractor’s cost accounting practices.” 41 

U.S.C. § 1502(f). In accordance with that mandate, the 

Board promulgated FAR 9903.201-4, which requires contracting officers to insert, in each CAS-covered contract, a 

clause that “requires the contractor to comply with all CAS 

specified in [48 C.F.R. pt. 9904].” 48 C.F.R. § 9903.201-

4(a)(2). The required clause states that “the provisions of 

[part] 9903 are incorporated herein by reference” and that 

a contractor shall “[c]omply with all CAS, including any 

modifications and interpretations indicated thereto contained in part 9904” as of certain times and “any CAS (or 

modifications to CAS) which hereafter become applicable 

to a contract.” 48 C.F.R. § 9903.201-4 (clause sections 

(a)(1) and (a)(3)). As relevant here, the clause also requires

the contractor, upon making a “change to a cost accounting 

practice,” to “negotiate an equitable adjustment . . . .” Id.

(clause section (a)(4)(iii)). Notably for purposes of this case, 

another regulation, FAR 52.230-2, provides for insertion of 

a clause that incorporates 48 C.F.R. part 9903 by reference 

and that otherwise is the same for present purposes as the 

clause set out in FAR 9903.201-4. See 48 C.F.R. § 52.230-

2.

An additional regulation, FAR 52.230-6, entitled “Administration of Cost Accounting Standards,” establishes a 

framework for determining the amount of an equitable adjustment; as relevant here, it requires that every CAS contract contain a detailed clause addressed to that topic. 

48 C.F.R. § 52.230-6. Each relevant agency must appoint 

a “Cognizant Federal Agency Official” (CFAO), i.e., a contracting officer responsible for implementing CAS provisions that govern the agency’s contracts. 48 C.F.R. 

§ 52.230-6 (clause section (a)). In that role, the designated 

contracting officer coordinates the agency’s response to 

changes in cost accounting practices.

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THE BOEING COMPANY v. UNITED STATES 5

A contractor must “[s]ubmit to the CFAO a description 

of any cost accounting practice change . . . and any written 

statement that the cost impact of the change is immaterial.” Id., § 52.230-6 (clause section (b)). As relevant here, 

upon determining that a change complies with the CAS but 

is “undesirable,” the contracting officer must classify the 

change as “unilateral” and inform the contractor that “the 

Government will pay no aggregate increased costs.” Id.

(clause section (a)). The contracting officer may request 

that the contractor submit a “general dollar magnitude 

(GDM) proposal” calculating the “cost impact” of the 

changes. See id. (clause section (c)(1)) (GDM proposal must 

be “in accordance with paragraph (d) or (g) of this clause”); 

id. (clause section (d)(1)) (“[T]he GDM proposal shall . . . 

[c]alculate the cost impact in accordance with paragraph (f) 

of this clause.”). For a unilateral change, the proposal must 

include an estimate of the “increased cost to the Government in the aggregate.” Id. (clause section (f)(2)(iv)). 

At the heart of this case is one further regulation, 

FAR 30.606, entitled “Resolving cost impacts.” 48 C.F.R. 

§ 30.606. Although FAR 52.230-6 and its required contract 

clause do not refer to FAR 30.606, it is undisputed that, in 

deciding how to deal with the cost impacts of changes, “the 

Government was required to follow FAR 30.606 when administering the Contract.” U.S. Br. at 45 (citing 41 U.S.C. 

§ 1121(c)(1)); id. (“FAR 30.606 is mandatory”); id. at 50 

(“We do not dispute that FAR 30.606 could not be waived, 

nor that contracting officers are precluded from granting 

such a waiver.”). FAR 30.606 gives the contracting officer 

discretion to “adjust[] a single contract, several but not all 

contracts, all contracts, or any other suitable method.” 

48 C.F.R. § 30.606(a)(2). But the regulation limits that discretion in a respect central to the dispute in this case. It 

instructs the contracting officer not to “combine the cost 

impacts of . . . . [o]ne or more unilateral changes” “unless 

all of the cost impacts are increased costs to the government.” Id., § 30.606(a)(3)(ii)(A). As is undisputed, that 

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6 THE BOEING COMPANY v. UNITED STATES

provision bars offsetting increases in costs from some 

changes with reductions in costs from others. 

Under FAR 52.230-6, if the contracting officer determines that the unilateral, undesirable changes have 

caused an “aggregate increased cost,” the contractor must 

“[r]epay the Government” an amount equal to the aggregate increased cost. Id., § 52.230-6 (clause section (k)(2)). 

Any disagreement over repayment, the CAS statute declares, “will constitute a dispute under chapter 71 of this 

title,” i.e., a dispute under the Contract Disputes Act. 41 

U.S.C. § 1503(a); see id., §§ 7101–09. 

B

From 1992 to 2015, Boeing, through its Fixed Wing Accounting Business Unit segment of its Defense, Space & 

Security division, entered into numerous contracts with 

the federal government. The contract at issue here is Contract No. N00019-09-C-0019 (the C19 contract), based on a 

solicitation issued by the Naval Air Systems Command and 

awarded in late 2008 to McDonnell Douglas Corporation, 

which was by then part of Boeing and has been treated by 

the parties as within Fixed Wing’s aegis. J.A. 404. The 

award recites an “amount” of roughly $67 million and 

states that the contract would be administered, on the government’s side, by the Defense Contract Management 

Agency. Id. It is undisputed before us that the contract is 

governed by CAS. The contract incorporates various 

clauses either by reference or by full text. J.A. 1013–23; 

J.A. 405. The clauses set out in FAR 52.230-2 and 52.230-

6 are among those incorporated; FAR 30.606 is not. 

J.A. 1013–23; J.A. 405.

In October 2010, Boeing informed the Defense Contract 

Management Agency’s designated contracting officer that 

Fixed Wing was planning to implement simultaneously, on 

January 1, 2011, several changes to its cost accounting 

practices. The contracting officer deemed eight of those 

changes to be undesirable “unilateral changes,” designated 

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THE BOEING COMPANY v. UNITED STATES 7

the C19 contract as representative, and asked Boeing to 

submit a general magnitude dollar proposal. In its proposal, Boeing estimated that two changes—GT-2011-06 

and GT-2011-07—would increase the government’s costs 

by $888,000 ($940,007 after factoring in Boeing’s profits). 

But Boeing estimated that two other changes—GT-2011-

04 and GT-2011-05—would save the government 

$2,284,000. Because the net effect of the changes was to 

save the government $1,396,000 ($1,489,000 after factoring in Boeing’s profits), Boeing duly contended that it need 

not make any payment because there was no “aggregate 

increased cost.” FAR 52.230-6(k)(2).

On December 21, 2016, a Divisional Administrative 

Contracting Officer (DACO) of the Defense Contract Management Agency determined, in a “Final Decision,” that 

Boeing owed the government $1,064,773. J.A. 67. She 

drew that conclusion by limiting her calculation to the 

“[t]wo of the eight changes . . . [that] materially . . . increase costs to the Government,” disregarding the other, 

cost-saving changes. J.A. 68. She ruled that Boeing had to 

pay the government $940,007, plus interest of $124,776

(through December 2016). Id.; see also J.A. 64–65 (denying 

reconsideration). To fulfill that obligation, Boeing began 

paying the government $8,900 per month. J.A. 55.

C

On December 18, 2017, Boeing filed an action in the 

Court of Federal Claims under the Contract Disputes Act. 

See 41 U.S.C. § 7104(b) (“[I]n lieu of appealing the decision 

of a contracting officer under section 7103 of this title to an 

agency board, a contractor may bring an action directly on 

the claim in the United States Court of Federal Claims.”). 

Boeing alleged that the government breached the C19 contract, with its CAS-compliance clause, by failing to “negotiate an equitable adjustment,” FAR 9903.201-4, in 

accordance with the CAS statute. In particular, Boeing renewed its argument that FAR 30.606, which forbids the 

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8 THE BOEING COMPANY v. UNITED STATES

offsetting of cost increases and cost reductions from simultaneous changes in cost accounting practices, is unlawful, 

including because it is counter to the CAS statute’s general 

rule that “[t]he Federal Government may not recover costs 

greater than the aggregate increased cost to the Federal 

Government,” 41 U.S.C. § 1503(b). See J.A. 57; see also 

J.A. 58 (arguing that FAR 30.606 was promulgated without 

“adequate notice and comment”). Alternatively, Boeing alleged, the government’s “demand for payment,” “in direct 

violation of 41 U.S.C. § 1503(b),” was an “illegal exaction.” 

J.A. 60. 

Boeing filed a motion for judgment on the pleadings.

The government opposed Boeing’s motion and filed its own

cross-motions to dismiss (as to the illegal exaction claim) 

and for summary judgment (as to the contract claim). The 

trial court granted the government’s motions. 

The government’s argument on the contract claim was 

that, by failing to challenge the legality of FAR 30.606 before entering into the C19 contract, Boeing had waived its 

breach of contract claim that depended on challenging FAR 

30.606 as unlawful. The trial court agreed, characterizing 

the asserted conflict between FAR 30.606 and the CAS 

statute as a “patent ambiguity in [Boeing’s] contract with 

the government.” Boeing, 143 Fed. Cl. at 309. The court 

ruled that “[b]ecause Boeing did not seek clarification, before award, of the conflict it saw between the CAS statute, 

the CAS clause and FAR 30.606, its contract claims are 

foreclosed as a matter of law.” Id. at 310. 

The government’s argument on the illegal exaction 

claim was that jurisdiction under the Tucker Act, 28 U.S.C. 

§ 1491(a)(1), was lacking because the CAS Act, on which 

the allegation of illegality rested, is not a money-mandating statute. The trial court agreed. Relying on Norman v. 

United States, 429 F.3d 1081 (Fed. Cir. 2005), the court 

stated that Boeing was required to “show that 41 U.S.C. 

§ 1503(b) is money-mandating to establish jurisdiction for 

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THE BOEING COMPANY v. UNITED STATES 9

its illegal exaction claim.” Boeing, 143 Fed. Cl. at 304. The 

court concluded that Boeing had not done so and, therefore, 

“the illegal exaction claim . . . must be dismissed for lack of 

subject matter jurisdiction.” Id. at 307. 

Boeing timely appealed. We have jurisdiction under 28 

U.S.C. § 1295(a)(3). We review the Court of Federal 

Claims’ legal conclusions de novo and its factual findings 

for clear error. Love Terminal Partners, L.P. v. United 

States, 889 F.3d 1331, 1340 (Fed. Cir. 2018). 

II

Boeing contends that the trial court incorrectly ruled 

that Boeing waived its challenge to the lawfulness of 

FAR 30.606. We agree. Although Boeing advances several 

rationales for the inapplicability of waiver, we need not go 

beyond the following. A pre-award objection by Boeing to 

the Defense Department would have been futile, as the 

government concededly could not lawfully have declared 

FAR 30.606 inapplicable in entering into the contract. Our 

precedents do not require, to avoid waiver, that the contractor have pursued judicial avenues of relief before the 

award. To the extent that the government even urges 

adoption of such a requirement here, it has provided no 

sound basis for doing so in this case: it has not identified a 

judicial avenue through which a ruling on the merits of the 

objection was assuredly available. We therefore reverse 

the trial court’s waiver ruling. 

A

The basis for waiver adopted by the trial court and defended by the government is what the government labels, 

on the first page of its brief to this court, “the Blue & Gold 

waiver rule,” referring to this court’s decision in Blue & 

Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 

2007). U.S. Br. at 1. In Blue & Gold, which involved a bid 

protest, we drew on precedents involving certain contract 

ambiguities and concluded: “a party who has the 

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10 THE BOEING COMPANY v. UNITED STATES

opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the 

close of the bidding process waives its ability to raise the 

same objection subsequently in a bid protest action in the 

Court of Federal Claims.” Blue & Gold, 492 F.3d at 1313; 

see COMINT Systems Corp. v. United States, 700 F.3d 

1377, 1382 (Fed. Cir. 2012) (extending Blue & Gold to “situations in which the protesting party had the opportunity 

to challenge a solicitation before the award and failed to do 

so”). More generally, we have ruled that a waiver exists in 

certain circumstances where contract terms contain a “patent” ambiguity or defect, including an obvious omission, 

inconsistency, or discrepancy of significance, and the contractor or bidder who later challenges those contract terms 

in court had not properly raised the problem to the agency 

during the contract-formation process. See Inserso Corporation v. United States, 961 F.3d 1343, 1349–52 (Fed. Cir. 

2020); K-Con, Inc. v. Sec’y of Army, 908 F.3d 719, 721–22 

(Fed. Cir. 2018); Per Aarsleff A/S v. United States, 829 F.3d 

1303, 1312 (Fed. Cir. 2016); E.L. Hamm & Assocs., Inc. v. 

England, 379 F.3d 1334, 1341 (Fed. Cir. 2004); Jowett, Inc. 

v. United States, 234 F.3d 1365, 1368 n.2 (Fed. Cir. 2000). 

Boeing argues against applicability of that doctrine to 

this case on several grounds. It argues, for example, that 

there was no contract defect or ambiguity because, whereas 

the contract includes certain clauses requiring compliance

with the CAS statute, it does not include a clause requiring 

compliance with FAR 30.606. See supra p. 6; Boeing Br. at 

31–36. Boeing also contends that the doctrine is inapplicable where a challenge rests on a statute that is protective 

of the contractor and not primarily of the government, an 

exception that applies, Boeing says, to 41 U.S.C. § 1503(b). 

Boeing Br. at 46–52. We need not and do not reach either 

of those contentions. Instead, we address Boeing’s primary 

contention, Boeing Br. at 21–31, 37–45, and conclude that 

there was no waiver here because the government has not 

shown that Boeing bypassed an avenue of relief on the 

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THE BOEING COMPANY v. UNITED STATES 11

merits from the agency—indeed, has not even shown that 

Boeing bypassed a judicial forum that would adjudicate its 

contention on the merits.

As already noted, the government here concedes that, 

when entering into the contract at issue, its adherence to 

FAR 30.606 was “mandatory,” “FAR 30.606 could not be 

waived,” and “contracting officers are precluded from 

granting such a waiver.” U.S. Br. at 45, 50. In other words, 

it is undisputed that, if Boeing had objected to FAR 30.606 

during the negotiations to enter into the contract, the 

agency would have had to reject the objection. The agency 

could not lawfully have given Boeing the relief of rejecting 

application of FAR 30.606 to the contract. See Oral Arg. at 

13:20–14:25 (government counsel stating that FAR 30.606 

is “not something that the contracting officer has discretion” to apply or not to apply). 

Under our cases, as the government seems to 

acknowledge at one point, it is what Boeing said or did not 

say to the agency before entering into the contract that matters for purposes of the waiver doctrine. See U.S. Br. at 51 

(“Whether Boeing could have challenged FAR 30.606 in another forum through an APA action or through a pre-award 

bid protest is irrelevant to whether Boeing improperly 

stayed silent—before signing the Contract—on the purported conflict between the regulation and the CAS.”). The

government has not pointed to any precedent of this court 

under the contract waiver doctrine in which we have found 

waiver, or declared waiver to be available, despite the inability of the agency itself to grant the relief that the party 

later sought in court. None of this court’s precedents on 

which the government relies in addressing Boeing’s primary contention about contract waiver involved such a circumstance; the government does not argue otherwise.1 

1 In the portions of its brief directed to the Boeing 

argument we are addressing, the government cites K-Con, 

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The same is true of additional cases of ours on which the 

trial court relied in the corresponding portions of its opinion.2

Notably, we emphasized the significance of the availability of agency relief in one of the cases principally relied 

on by the government and the trial court, American Telephone & Telegraph Co. v. United States (AT&T II), 307 

F.3d 1374 (Fed. Cir. 2002). There, we held that AT&T had 

waived its challenge to the fixed-price nature of a 

$34.5 million contract. Id. at 1376. AT&T sought to reform 

the contract, invoking a regulation that, supporting 

AT&T’s position in court, directed agencies not to enter 

fixed-price contracts greater than $10 million. Id. We 

noted that the agency, in negotiating the contract, readily 

could have adopted the form of contract AT&T later sought 

in court. Id. at 1376, 1379. We concluded that “the proper 

time for AT&T to have raised the issues that it now 

supra; Per Aarsleff, supra; Blue & Gold, supra; E.L. Hamm, 

supra; American Telephone & Telegraph Co. v. United 

States, 307 F.3d 1374 (Fed. Cir. 2002) (AT&T II); Stratos 

Mobile Networks USA, LLC v. United States, 213 F.3d 1375 

(Fed. Cir. 2000); Whittaker Elec. Sys. v. Dalton, 124 F.3d 

1443 (Fed. Cir. 1997); United Int’l Investigative Servs. v. 

United States, 109 F.3d 734 (Fed. Cir. 1997); Cmty. Heating

& Plumbing Co. v. Kelso, 987 F.2d 1575 (Fed. Cir. 1993); 

and Space Corp. v. United States, 470 F.2d 536 (Ct. Cl. 

1972). See U.S. Br. at 23, 31–33, 36, 41–43, 52.

2 In those portions of its opinion, the trial court cited, 

besides some of the cases cited supra n.1, Triax Pac., Inc. 

v. West, 130 F.3d 1469 (Fed. Cir. 1997); Statistica, Inc. v. 

Christopher, 102 F.3d 1577 (Fed. Cir. 1996); Interwest Constr. v. Brown, 29 F.3d 611 (Fed. Cir. 1994); Newsom v. 

United States, 676 F.2d 647 (Ct. Cl. 1982); and E. Walters 

& Co. v. United States, 576 F.2d 362 (Ct. Cl. 1978). See 

Boeing, 143 Fed. Cl. at 309–10, 313–14.

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presents was at the time of the contract negotiation, when 

effective remedy was available.” Id. at 1381 (emphasis 

added).3 

Even more notably, where the agency, during contracting, could not have accepted the objection later raised by 

the plaintiff in court, we have rejected a government argument for waiver precisely because of the disability. In GHS 

Health Maintenance Organization, Inc. v. United States

(GHS II), we determined that a contractor had not waived 

its challenge to a regulation. 536 F.3d 1293, 1295 (Fed. Cir. 

2008). Noting that the contract contained the language of 

the regulation, the government argued that the contractor 

had consented to the regulation, and thereby waived its 

challenge, by signing the contract. Id. at 1306. We rejected 

this argument as “frivolous” on the simple ground that the 

regulation “was non-negotiable.” Id.

3 In Blue & Gold, we held that Blue & Gold, a losing 

bidder, waived the contention that the agency was required 

to include in the solicitation a requirement of compliance 

with an employee-pay statute, because Blue & Gold did not 

make that objection to the agency during the bidding process. In so ruling, we discussed an agency regulation relevant to whether Blue & Gold should have been aware of a 

general agency practice, but we did not suggest that the 

regulation barred the agency from including in the solicitation the requirement Blue & Gold later urged in court. Indeed, we noted that, after the award was made (to a rival 

bidder), the Park Service agreed to apply the statute to the 

contract, 492 F.3d at 1316, with no apparent change in the 

regulation. Blue & Gold, for its part, made no contrary contention; in fact, it stated that the regulation “nowhere mentions the” statute “or clearly states” that the contract at 

issue was outside the statute. Reply Br. of Appellant at 8,

Blue & Gold, 492 F.3d 1308 (Fed. Cir. 2007) (No. 06-5064),

2006 WL 3243586. 

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GHS II cannot be disregarded as too abbreviated in its 

analysis, which is clear and to the point. It also is consistent with all the relevant precedent identified to us or of 

which we are aware. It reflects the contract waiver doctrine’s origin in the policy of ensuring that two negotiating 

parties (whether private or governmental) do what they are 

able to do to clear up patent ambiguities or defects before 

formation, thus helping to reduce future litigation and allowing expeditious contract formation. See Blue & Gold, 

492 F.3d at 1313–15. In addition, with Blue & Gold having 

itself looked to “analogous” doctrines, id. at 1314, we note 

that GHS II aligns with the familiar “futility” exception to 

related requirements for preserving a challenge by first 

presenting the matter to an agency. See Shalala v. Illinois 

Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000);

McCarthy v. Madigan, 503 U.S. 140, 147–48 (1992); Montana Nat. Bank of Billings v. Yellowstone County, 276 U.S. 

499, 505 (1928).

Under our case law, we conclude, there was no waiver.

B

GHS II does not specifically discuss whether waiver 

could be found where, though relief from the agency was 

not available, a contractor or bidder bypassed, during the 

contract-formation process, an opportunity for a judicial

ruling on the merits of the objection later asserted in court. 

It is not clear, however, whether the government is contending that bypassing a judicial avenue of relief is a 

ground for waiver, generally or in this case. Compare U.S. 

Br. at 51 (“Whether Boeing could have challenged 

FAR 30.606 in another forum through an APA action or 

through a pre-award bid protest is irrelevant to whether 

Boeing improperly stayed silent—before signing the Contract—on the purported conflict between the regulation 

and the CAS.”) with id. at 36 n.12 (“Boeing had the choice 

to protest the terms of the solicitation—including a challenge to FAR 30.606—or to raise its challenge in an [APA] 

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claim.”) and Oral Arg. at 14:25–18:45 (government urging 

that Boeing should have sought judicial relief before entering into contract). Accordingly, we explain here only why 

the government’s argument along these lines falls short of 

justifying any expansion of the waiver doctrine to support 

a waiver in this case.

We do not decide whether failure to pursue a judicial 

remedy could ever support a determination of waiver in the 

contract context. We decide merely that we will not create 

such a new basis for waiver where the government has not 

identified a judicial forum in which the plaintiff would

clearly have been entitled, during the contract-formation 

process, to obtain a ruling on the merits of the objection it 

has raised in its later contract case. This conclusion reflects the general principle that forfeiture involves a “failure to make timely assertion of the right before a tribunal 

having jurisdiction to determine it.” Yakus v. United 

States, 321 U.S. 414, 444 (1944) (emphasis added); see

United States v. Olano, 507 U.S. 725, 731 (1993) (reiterating Yakus statement of forfeiture principle). 

The government mentions just two possible paths Boeing might have taken in court during contract formation: 

an action under the APA, 5 U.S.C. §§ 702, 704, and a bid 

protest action, 28 U.S.C. § 1491(b)(1). U.S. Br. 36 n.12, 51. 

But the government never asserts, let alone establishes, 

that Boeing would have been entitled to a ruling on the 

merits of its challenge to FAR 30.606 had it pursued either 

of those paths in 2008, when the contract at issue was negotiated. There are evident reasons to doubt any such entitlement, but the government has not meaningfully 

addressed such obstacles, saying no more than that it was 

up to Boeing to try to secure judicial relief. That response 

is inadequate for the government to meet its burden to establish a waiver through failure to seek judicial relief here, 

even if we assume (without deciding) that such a failure 

could support a contract-waiver holding in other situations. 

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16 THE BOEING COMPANY v. UNITED STATES

Without being comprehensive, we briefly identify some of 

the apparent obstacles, which are related to each other.

The CAS statute expressly provides that judicial resolution of disputes over “contract price adjustment[s]” shall 

take place under the Contract Disputes Act (CDA), 

41 U.S.C. §§ 7101–09. 41 U.S.C. § 1502(a). That description fits Boeing’s challenge: Boeing and the government 

disagree about the proper contract price adjustment to reflect Boeing’s post-contract-formation 2011 changes in its 

cost accounting practices. The government accepts that a 

pre-formation action would be outside the CDA. See U.S. 

Br. 52–53 (stating that “to raise a CDA claim Boeing must 

first have a contract”) (citing 41 U.S.C. § 7102(a)). Yet the 

government has not explained how the statutory routing of 

the particular dispute in this matter to the CDA leaves 

open an alternative, non-CDA, pre-formation route of judicial relief. Cf. Thunder Basin Coal Co. v. Reich, 510 U.S. 

200, 207 (1994) (ruling that a “detailed structure for reviewing violations” of a statutory provision or regulation 

precluded a “pre-enforcement challenge”); Seminole Tribe 

of Fla. v. Florida, 517 U.S. 44, 74–75 (1996) (statutory 

scheme precludes Ex parte Young action); Schweiker v. 

Chilicky, 487 U.S. 412, 422–23 (1988) (statutory scheme 

precludes Bivens action).

The CAS statute specifically addresses the APA. In 41 

U.S.C. § 1502(g), the statute declares that “[f]unctions exercised under this chapter are not subject to sections 551, 

553 to 559, and 701 to 706 of title 5,” thereby excluding 

coverage under the APA’s judicial review provisions, codified at 5 U.S.C. §§ 701–706. The government has not explained how a pre-formation APA action to contest the 

lawfulness of FAR 30.606 as to a contract price adjustment 

would fall outside that statutory exclusion of APA coverage.

As to the bid protest statute, this court has ruled that 

a “matter of contract administration . . . can only be 

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THE BOEING COMPANY v. UNITED STATES 17

challenged under the Contract Disputes Act,” not in a preaward bid protest. Coast Prof’l, Inc. v. United States, Fin. 

Mgmt. Sys., Inc., 828 F.3d 1349, 1355 (Fed. Cir. 2016). Boeing’s challenge appears on its face to involve a matter of 

contract administration: it objects to the government following FAR 30.606 to determine the amount of a price adjustment when Boeing chose to adopt changes in cost 

accounting practices during the performance of the contract. The government has not explained why this particular dispute could have been brought to court under the bid 

protest statute before the contract was formed, rather than 

under the CDA if and when FAR 30.606 was applied in a 

way adverse to Boeing during contract performance.4

Indeed, there is reason to doubt that any pre-formation 

challenge to FAR 30.606 would have been ripe for judicial 

review, under either of the two statutory provisions the 

government mentions. A claim is “not ripe for judicial review when it is contingent upon future events that may or 

may not occur.” Systems Application & Techs., Inc. v. 

United States, 691 F.3d 1374, 1383 (Fed. Cir. 2012) (citing 

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 

580–81 (1985)). Ripeness typically turns on (1) “the fitness 

4 We recently held that the Court of Federal Claims 

had jurisdiction under the bid protest statute, 28 U.S.C. 

§ 1491(b)(1), to hear a plaintiff’s challenge to a clear government position about a requirement that would likely 

make the plaintiff ineligible to compete for likely future 

government procurements for which it was likely to submit 

bids. Acetris Health, LLC v. United States, 949 F.3d 719, 

727–28 (Fed. Cir. 2020); id. at 727 (“Acetris has standing 

because the government has taken a definitive position as 

to the interpretation of [statutory and regulatory provisions] that would exclude Acetris from future procurements for other products on which it is a likely bidder.”). 

The government has not shown that Acetris applies here.

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18 THE BOEING COMPANY v. UNITED STATES

of the issues for judicial decision” and (2) “the hardship to

the parties of withholding court consideration,” Abbott 

Labs. v. Gardner, 387 U.S. 136, 149 (1967), with the first 

factor focused on “whether the challenged conduct constitutes a final agency action,” Systems Application, 691 F.3d 

at 1384. The government has not shown how Boeing could 

reliably have met the ripeness standard in 2008, well before it made the 2011 changes in its cost accounting practices and before the Defense Department made a decision 

under FAR 30.606 that would concretely harm Boeing, 

which depended on the particular changes.

In short, the government has not sufficiently explained 

how and where Boeing could have sought pre-award judicial review of FAR 30.606. At least in this circumstance, 

we see no basis for departing from our consistent precedent 

limiting the contract waiver doctrine to an objection that 

the agency itself could have resolved favorably to the objector if the objection had merit. We therefore hold that the 

trial court erred in ruling that Boeing waived its challenge. 

III

Boeing also contends that the trial court, in ruling that 

it lacked jurisdiction over the “illegal exaction” claim, mistakenly required that the asserted basis of illegality be a 

“money-mandating” statute. We agree with Boeing. 

A

Case law involving the Tucker Act, 28 U.S.C. § 1491(a), 

has long distinguished three types of claims against the 

federal government: contractual claims, illegal-exaction 

claims, and money-mandating-statute claims. Our predecessor court made this distinction in Eastport S.S. Corp. v. 

United States, stating that “the non-contractual claims we 

consider under Section 1491 can be divided into two somewhat overlapping classes—those in which the plaintiff has 

paid money over to the Government, directly or in effect, 

and seeks return of all or part of that sum; and those 

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demands in which money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment 

from the treasury.” 372 F.2d 1002, 1007 (Ct. Cl. 1967) (en 

banc). The Supreme Court endorsed that formulation in 

United States v. Testan, 424 U.S. 392, 400 (1976). Since 

then, we have repeated that the “underlying monetary 

claims are of three types.” See Ontario Power Generation, 

Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); 

Aerolineas Argentinas v. United States, 77 F.3d 1564, 

1572–73 (Fed. Cir. 1996). 

“One way an illegal exaction occurs,” we have stated,

“is when the ‘plaintiff has paid money over to the Government . . . and seeks return of all or part of that sum’ that 

was ‘improperly paid, exacted, or taken from the claimant

in contravention of the Constitution, a statute, or a regulation.’” Virgin Islands Port Authority v. United States, 922 

F.3d 1328, 1333 (Fed. Cir. 2019) (quoting Eastport S.S., 372 

F.2d at 1007). Allegations of subject matter jurisdiction, to 

suffice, must satisfy a relatively low standard—must exceed a threshold that “has been equated with such concepts 

as ‘essentially fictitious,’ ‘wholly insubstantial,’ ‘obviously 

frivolous,’ and ‘obviously without merit.’” Shapiro v. 

McManus, 136 S. Ct. 450, 456 (2015) (internal quotations 

omitted). Thus, to establish Tucker Act jurisdiction for an 

illegal exaction claim, a party that has paid money over to 

the government and seeks its return must make a non-frivolous allegation that the government, in obtaining the 

money, has violated the Constitution, a statute, or a regulation.

Under this standard, Boeing has established jurisdiction for its illegal exaction claim. Boeing alleged that the 

government “demanded that Boeing pay it . . . $940,007” to 

cover the “increased costs caused by two of the changes,” 

that the government “also demanded $124,766 in compound interest,” and that Boeing had already “paid $71,276 

to the Government.” J.A. 55. And Boeing alleged that the 

government’s “demand for payment of $1,064,773 

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20 THE BOEING COMPANY v. UNITED STATES

[$940,007 plus $124,766] is . . . in direct violation of 41 

U.S.C. § 1503(b), which requires that the Government ‘may 

not recover costs greater than the aggregate increased cost 

to the Federal Government.’” J.A. 60. In short, Boeing alleged that the government has demanded and taken Boeing’s money in violation of a statute. Whatever its ultimate 

merits, this allegation suffices for jurisdiction to adjudicate 

the illegal exaction claim. 

In reaching a contrary conclusion, the trial court relied

on our decision in Norman v. United States, 429 F.3d 1081, 

1095 (Fed. Cir. 2005). There, we stated that “[t]o invoke 

Tucker Act jurisdiction over an illegal exaction claim, a 

claimant must demonstrate that the statute or provision 

causing the exaction itself provides, either expressly or by 

‘necessary implication,’ that ‘the remedy for its violation

entails a return of money unlawfully exacted.’” Id. (quoting 

Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 

1373 (Fed. Cir. 2000)). According to the trial court, that 

statement requires Boeing to “show that 41 U.S.C. 

§ 1503(b) is money-mandating to establish jurisdiction for 

its illegal exaction claim.” Boeing, 143 Fed. Cl. at 304.

The trial court read more into the Norman statement 

than is proper given the otherwise-clear law, from Eastport

S.S. through Testan through later cases of this court, applying the requirement of a “money-mandating” statute 

only to claims for money damages for government action 

different from recovery of money paid over to the United 

States under an illegal exaction. See Ontario Power, 369 

F.3d at 1301. Although Norman did not involve a claim 

based on money paid over to the government, it used the 

phrase “illegal exaction” to refer to a government act delineating certain land as wetlands and to the plaintiff’s own 

expenditure of money for fees and services in conjunction 

with that delineation. Norman, 429 F.3d at 1094–95. The 

court’s statement thus was not addressing an illegal exaction of the sort Boeing alleges—which refers only to the 

amounts Boeing has already paid over to the government 

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THE BOEING COMPANY v. UNITED STATES 21

based on the government’s allegedly illegal application of 

FAR 30.606. Boeing’s claim falls under the Eastport S.S. 

category for which the “money-mandating” standard need 

not be met.5

We have, since Norman, assumed jurisdiction over 

statutory illegal exaction claims with no regard for 

whether the statutes were “money-mandating.” See, e.g., 

American Airlines, Inc. v. United States, 551 F.3d 1294, 

1296 (Fed. Cir. 2008); Lummi Tribe v. United States, 870 

F.3d 1313, 1317–19 (Fed. Cir. 2017); Virgin Islands Port 

Auth., 922 F.3d at 1333–34. Thus, we will not interpret 

Norman as having erased the distinction between the two 

types of claims. See also National Veterans Legal Services 

Program v. United States, Nos. 2019-1081, -1083, at 10–14

(Fed. Cir. Aug. 6, 2020).6 

5 The Norman opinion cites Cyprus Amax Coal Co. v. 

United States, 205 F.3d 1369 (Fed. Cir. 2000), but that decision does not even use the phrase “illegal exaction,” much 

less modify Eastport S.S. In Cyprus Amax we held that the 

Export Clause of the Constitution authorized money damages for an illegal tax; the issue of recovery of an illegal 

exaction in the absence of such a money-mandating provision was not presented. Id. at 1373–76.

6 The recent case of Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), did not involve a government exaction of money that the plaintiff 

was seeking to recover, but a claim for damages based on a 

violation of a statutory obligation to pay. The Supreme 

Court did not discuss the “illegal exaction” branch of 

Tucker Act jurisdiction described in Eastport S.S. and 

Testan. See Maine Community, 140 S. Ct. at 1327–31.

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22 THE BOEING COMPANY v. UNITED STATES

IV

For the foregoing reasons, we reverse the judgment of 

the Court of Federal Claims. We remand for proceedings 

consistent with this opinion. 

Costs awarded to appellant.

REVERSED AND REMANDED

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