# United States **Court of Appeals**  **for the Federal Circuit**

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ELECTRIC BOAT CORPOR ATION, Appellant

v.

SECRETARY OF THE NAV Y, Appellee

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2019

- 1621

______________________Appeal from the Armed Services Board of Contract Appeals in No. 58672, Administrative Judge David D ’ Alessandris, Administrative Judge J. Reid Prouty, Administrative Judge Richard Shackleford.

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Decided: May 19, 2020

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I AN G ERSHENGORN , Jenner & Block LLP, Washington, DC, argued for appellant. Also represented by M ATTHEW S. H ELLMAN , D. J OE S MITH

.

W ILLIAM J AMES G RIMALDI , Commercial Litigation Branch, Civil Division, United States Department of Justice, W ashington, DC, argued for appellee. Also represented by J OSEPH H. H UNT , M ARTIN F. H OCKEY , J R ., R OBERT E DWARD K IRSCHMAN , J R

. ; A LANA M. S ITTERLY , R USSELL S HULTIS , Naval Litigation Office, United States Department of the Navy, Washington, DC

. Case: 19-1621 Document: 42 Page: 1 Filed: 05/19/2020ELEC

. BOAT CORP

. v. SEC ’ Y OF THE NAVY 2

______________________
Before L OURIE , M OORE , and C HEN , Circuit Judges

. M OORE , Circuit Judge

. Electric Boat Corporation appeals from the Armed Services Board of Contract Appeals’ grant of partial summary judgment to the United States Department of the Navy, holding that Electric Boat’s Contract Dispute Act (CDA) claim is barred by the statute of limitations. Because the B oard correctly held that Electric Boat’s claim is barred by the statute of limitations, we affirm.

B ACKGROUND On August 14, 2003, Ele c tric Boat and the Navy entered into a contract (the Contract) for the construction of up to six separate Virginia

- class nuclear

- powered submarines (SSN s ), SSN 778 through SSN 783

. 1 The Contract established a target price for each submarine

, comprising the sum of the target cost and the target profit. See J.A. 84 (SSN 783). Electric Boat was entitled to periodic progresspayments proportional to Electric Boat’s overall construction progress . J.A. 271

– 79 (Clause H

- 29). The Navy was required to fully compensate Electric Boat under the Contract until Electric Boat’s invoiced costs exceeded

1 The Contract between Electric Boat and the Navy funded f ull construction of only the first submarine, SSN 778. Pursuant to Clause H

- 17 of the Contract, the remaining five submarines were funded on an installment basisand the parties’ obligations under the Contract were entirely contingent on the future availa bility of funds. J.A. 238

– 39. The Navy modified the Contract in January 2004

, transitioning the contract to a multi

- year procurement contract for the remaining five submarines. J.A. 396. Clause H

- 20 of the modified contract maintained the installment funding and contingency provisions of Clause H

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construction progress at the target price, less certain adjustments. Id

. The Contract incorporate s by reference the standard C hange s C lause under 48 C.F.R. § § 52.243

- 1
, - 2 . J.A. 335, 344. The Changes Clause requires that the Navy’s Contracting Officer “make an equitable adjustment in the contract price, the delivery schedule, or both” in the event that the Contracting Officer makes a change to the contract that “causes an increase or decrease in the cost of, or the time required for, performance.” 48 C.F.R. § 52.243

- 1(b). The Contract also include s a “Change

- of

- Law Clause, ” which provide s for a price adjustment in the event that compliance with a new federal law , or a ch ange to existing federal laws or regulations, directly increase s or decrease s Electric Boat’s cost s of performance . J.A. 279

– 81 (Clause H

- 30). The Change

- of

- Law Clause specifie s that no cost adjustments shall be made thereunder for the first two years after the effective date of the Contract (i.e., until August 15, 2005). J.A. 280. After two years, adjustments shall only be made if a qualifying change of law increase s Electric Boat’s costs of performance “in excess of $125,000 per ship.” J.A. 281 (Cl ause H

- 30(c)).

T he Change

- of

- Law Clause require s that Electric Boat promptly notify the Navy’s Contracting Officer of a qualifying enactment or change in federal law . J.A. 281 (Clause H

- 30(d)). Section (e) of the Change

- of

- Law C lause further provide s t hat requests for price adjustments thereunder be made in accordance with the procedures set forth in Clause H

- 9 , entitled “Documentations of Requests for Equitable Adjustment

. ” J.A. 281 (Clause H

- 30(e)). Clause H

- 9 set s forth uniform procedures for submi tting request s for equitable adjustment s under all articles of the Contract , including the standard Changes Clause . J.A. 228.
On September 15, 2004, OSHA issued a new federal regulation entitled Fire Protection in Shipyard Employment (the OSHA R egulatio n)

. See 69 Fed. Reg. 55,668 Case: 19-1621 Document: 42 Page: 3 Filed: 05/19/2020ELEC

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(Sept. 15, 2004) (codified at 29 C.F.R. § 1915.501 et seq. ). Th e OSHA R egulation

, which became effective on December 14, 2004 , required companies to post a fire watch if certain conditions are present during “ hot work ” in shipyard employment

. See id. ; 29 C.F.R. § 1915.504(b)

. On February 24, 2005, Electric Boat submitted a Notification of Change to the Navy

. J.A. 453

– 57. The Notification stated that “ Electric Boat a nticipates that compliance with [the OSHA R egulation] will result in an increase in the cost of performance [under the Contract] in excess of $125,000 per ship .” J.A. 45 3

.On June 27, 2007, Electric Boat submitted a cost proposal to the Navy, seeking price adjustment s across all six submarines. J.A. 4 59

– 69. In October 2008, the Navy countered

, challenging Electric Boat’s calculations of certain
costs . J.A. 554

– 57. In April 2009, Electric Boat submitted a revised cost proposal to the Navy. J.A. 55 9

– 67 . On May 2, 2011, the Contracting Officer of the Navy issued a memorandum decision formally denying Electric Boat “entitlement to an adjustment of the contract price.” J.A. 70 5

– 10. The memorandum stated that Electric Boat’s cost proposals had “inadequate support” and that there were “discrepancies between [ Electric Boat’s ] proposal and the Government’s review of various documents related to the OSHA change.” J.A. 708. The memorandum further stated that if Electric Boat decided to further pur sue an adjustment related to the OSHA Regulation

, “ it should seek adjustment pursuant to [ regulations governing ] ‘ Requests for Equitable Adjustment ’” by June 3, 2011. Id.
On December 19, 2012, Electric Boat filed a certified claim with the Navy

, seeking a price adjustment for increased costs it allegedly incurred in complying with the OSHA Regulation. J.A. 711

– 12. On February 27, 2013, the government issued a Contracting Officer’s Final Decision denying Electric Boat’s claim. J.A. 713

– 30. Elec tric Boat appealed the Contracting Officer’s Final Decision to the Board. The Navy moved for summary judgment that Case: 19-1621 Document: 42 Page: 4 Filed: 05/19/2020ELEC

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Electric Boat’s clai m w as barred by the statute of limitations. Electric Boat filed a cross

- motion for summary judgment that its claim was timely filed.
On December 10, 2018, the Board granted

- in

- part theNavy’s motion for summary judgment and dismissed Electric Boat’s complaint. 2 J.A. 17. The Board determined that Electric Boat knew of its claim no later than February 2005, when Electric Boat submitted its Notification of Change to the Navy. J.A. 10. The Board further held that Electric Boat “suffered some injury not later than August 15, 2005, the dat e two years after the effective date of the [C ] ontract when [the Change

- of

- Law Clause] would first provide the right to a price adjustment.” J.A. 10. Because Electric Boat’s Claim was not filed until December 2012, more than six years after the August 2005 accrual date , the Board held that Electric Boat’s claim was untimely. J.A. 17. El ectric Boat appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10).

D ISCUSSION
We review the Board’s grant of summary judgment de

novo

. Gates v. Raytheon Co. , 584 F.3d 1062, 1067 (Fed. Cir. 2009). I nterpretation of a government contract is question of law, which we also review de novo

. See Forman v. United States , 329 F.3d 837, 841 (Fed. Cir. 2003). Though not binding on the Court, we give the Board’s legal conclusions careful consideration in view of the B oard’s considerable experience in construing government contracts. See Gates

, 584 F.3d at 1067.

2 The B oard denied the Navy’s motion for summary judgment as it pertained to Electric Boat’s claim for costs incurred by Electric Boat’s subcontractor , Huntington Ingalls, Inc . J.A. 17

– 18. The Navy has not challenged this aspect of the Board’s decision on appeal

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I.

A CDA claim “shall be submitted within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A).Whether and when a claim has accrued is determined according to the Federal Acquisition Regulation (FAR), the language of the contract, and the facts of the particular

case. Kellogg Brown & Root Servs., Inc. v. Murphy , 823 F.3d 622, 626 (Fed. Cir. 2016) . The FAR defines claim accrual as “the date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known.” See 48 CFR § 33.201. Although “ monetary dam ages need not have been incurred ,” “[f]or liability to be fixed, some injury must have occurred.” Id. We conclude the Board correctly determined that Electric Boat’s claim accrued more than six years before Electric Boat submitted it s claim and that Elec tric Boat’s claim is therefore barred by the statute of limitations

. The plain language of the C ontract compels our conclusion. It provides that : (b) If, at any time after the effective date of this contract, a New Federal Law is enacted or a change is made to a Currently Applicable Federal Law or a New Federal Law or regulations thereunderpromulgated by Federal authorities, and compliance with such new law or change directly results in an increase or decrease in the Contractor’s cost of performance of this contract, the contract price(s) shall be adjusted

. . . . No such adjustmentshall be made for contract costs incurred or projected to be incurred during the two (2) year period after the effective date of this contract.

J.A. 28 0 (Clause H

- 30(b))

. E lectric Boat’s injury under the Contract w as the enactment of the OSHA Regulation, thecompliance with which Electric Boat contends directly increased its costs of performance by more than $125,000 per Case: 19-1621 Document: 42 Page: 6 Filed: 05/19/2020ELEC

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submarine. See J.A. 453. Because the OSHA Regulation became effective in December 2004

, the Navy’s liability for a price adjustment became fixed under the Contract on August 15, 2005
, when Clause H

- 30 first provide s a right to a price adjustment

. See J.A. 28 0

. The Board correctly determine d that the Navy’ s liability was fixed, and therefore Electric Boat’s claim accrued

, on August 15, 2005, more than six years before Electric Boat filed its claim

. See 48 C.F.R. § 33.201.

Electric Boat contends that its claim for costs did not accrue until May 2, 2011 when the Navy’s Contracting Officer denied its request for a price adjustment . It argues that it was not injured under the Contract until it received notice of the Navy ’s intent to not adjust the contract price

. Citing our decision in Kellogg Brown

, Electric Boat argues that the Board therefore erroneously determined that the procedures required by the Change

- of

- Law Clause did not delay accrual of Electric Boat’s claims. We do not agree.
Although “ the limitations period does not begin to run if a c laim cannot be filed because mandatory pre

- claim procedures have not been completed

, ” the contract here did not require that Electric Boat undertake any such procedures. See Kellogg Brown , 823 F.3d at 628. I n Kellogg Brown

, the Army required that the con tractor resolve disputed costs with the subcontractor before fil ing a claim for reimbursement. Id. We held that the contractor’s claim therefore did not accrue until the contractor resolved cost disputes with the subcontractor as required by the contract. Id. at 628

– 29. T he Contract here , however, expressly states that r equests for price adjustments under the Change

- of

- Law Clause “ shall be made in accordance with the procedures of the requirement entitled ‘ DOCUMENTATION OF REQUESTS FOR EQUITABLE ADJUSTMENT .’ ” J.A. 281 (Clause H

- 30(e)). T he Contract therefore require d that Electric Boat follow the standard equitable adjustment procedures set for th in Clause H

- 9 of the Contract

. See J.A. 228 , J.A. 334

. Although the Change

- of

- Law Clause Case: 19-1621 Document: 42 Page: 7 Filed: 05/19/2020ELEC

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required Electric Boat to “promptly notify” the Navy of a qualifying change in law, Electric Boat was not required to await a unilateral Navy price adjustment pri or to filing a claim. See J.A. 281. Indeed, Electric Boat’s injury under Clause H

- 30 of the contract was the enactment of the OSHA Regulation, not the Navy’s refusal to adjust the price

. 3 T hat the Navy did not formally refuse to adjust the price until May 2, 2011 therefore does not excuse Electric Boat’s failure to timely file a claim in compliance with the CDA and the plain language of the Contract

. See J.A. 228;

see also J .A. 334 (incorporating by reference the FAR’s standard Disputes Clause)

. II.
Electric Boat argues two alternative theories of partial timeliness. First, Electric Boat contends that its claim is timely as to five of the six submarines, SSN 779 through SSN 783

, because Electric Boat’s costs for these su bmarines did n o t exceed the target price until after December 19 , 200 6 (the Critical Date)

. Because its claims did not exceed the target price, Electric Boat argues that it was being fully compensated and therefore had no claim for equitable adjustment for these submarines until after the Critical Date

. Electric Boat’s contention is unavailing

.

3 Electric Boat’s complaint alleged two counts of relief: one count for an entitlement to a price adjustment and the other c ount for breach of contract arising from theNavy’s May 2, 2011 denial of Electric Boat’s request for adjustment. J.A. 75. Electric Boat waived any argument of timeliness under common law breach of contract principles by failing to argue before the Board that its injury arose from the Navy’s alleged breach of contract on May 2, 2011

. See J.A. 14 (identifying Electric Boat’s alleged first date of actual injury as December 15, 2006). Case: 19-1621 Document: 42 Page: 8 Filed: 05/19/2020ELEC

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Electric Boat was not required to incur actual costs foreach submarine before filing a claim for equitable adjustment und er the Contract. Instead, when Electric Boat’s claim accrued in August 2005, Electric Boat had six years to file a claim for a n equitable adjustment to the contractual price terms, including the t arget c ost for each submarine. See J.A. 280. T hat the Nav y made progress payments to Electric Boat as required by Clause H

- 29 of the Contract does not excuse Electric Boat’s untimeliness as to any of the six submarines

. See J .A. 271

– 79 (Clause H

- 29). The Navy’s payment of scheduled progress payments does not

a mount to agreement that Electric Boat is entitled to increased actual costs. There was an express provision under the contract for seeking such increased costs

— equitable adjustment.

Second , Electric Boat contends that its claims are timely as to the las t two submarines , SSN 782 and SSN 783, because the Navy did not authorize funds for ElectricBoat to begin construction on the final two ships until December 28, 2006 and January 10, 2008, respectively. B ecause Clause H

- 20 of the Contract made Electric Boat’s performanc e contingent upon funding , Electric Boat argues it could not have know n the “ sum certain ” of additional
costs that it would incur for these submarines until after the Critical Date . This contentio n is also unavailing.

Clause H

- 20 of the Contract merely provides that Electric Boat’s expenditure for each fiscal year is contingent on the appropriation of funds. J.A. 245. It establishes that Electric B o at was not authorized to make expenditures or in cur obligations in excess of the amounts that the Contracting Officer had specified as available for performance. J.A. 245

. Clause H

- 20 d oes not , however, make Congressional appropriation a condition precedent for seeking a price adjustment for each subm arine. Thus, while Electric Boat was precluded from incurring actual costs in the hull construction of the final two submarines until funding had been approved, it was not precluded from filing a claim for Case: 19-1621 Document: 42 Page: 9 Filed: 05/19/2020ELEC

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adjusted target costs for these two submarines un der Clause H

- 30. 4 We therefore reject Electric Boat’s second theory of partial timeliness, which runs counter to the plain language of the Contract and would needlessly delay the filing of claims for equitable price adjustments.

C ONCLUSIONWe have considered Electric Boat’s remaining arguments and find them unpersuasive. For the foregoing reasons, we conclude that the Board correctly determined that the statute of limitations barred Electric Boat’s claim and therefore affirm the Board’s dec ision

. AFFIRMED

No Costs.

4 The Board rejected Electric Boat’s argument that its claim did not ac crue until June 2007, when it allegedly had the information necessary to assert its claim. J.A. 13. The Board determined that the accrual of Electric Boat’s claim was not suspended between August 2005 and June 2007, while Electric Boat gathered the infor mation it deemed necessary to calculate its projected costs. J.A. 13.Because Electric Boat does not challenge this determination on appeal, it has waived any argument that its claim did not accrue until it could calculate the “ sum certain ” of its incurr ed costs. Case: 19-1621 Document: 42 Page: 10 Filed: 05/19/2020