United States Court of Appeals 

for the Federal Circuit ______________________

ELECTRIC BOAT CORPORATION,

Appellant

v.

SECRETARY OF THE NAVY,

Appellee

______________________

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.

______________________

Decided: May 19, 2020

______________________

IAN GERSHENGORN, Jenner & Block LLP, Washington, 

DC, argued for appellant. Also represented by MATTHEW 

S. HELLMAN, D. JOE SMITH. 

 WILLIAM JAMES GRIMALDI, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for appellee. Also represented by JOSEPH H. HUNT, MARTIN F. HOCKEY, JR.,

ROBERT EDWARD KIRSCHMAN, JR.; ALANA M. SITTERLY, 

RUSSELL SHULTIS, Naval Litigation Office, United States 

Department of the Navy, Washington, DC. 

Case: 19-1621 Document: 42 Page: 1 Filed: 05/19/2020
2 ELEC. BOAT CORP. v. SEC’Y OF THE NAVY

 ______________________

Before LOURIE, MOORE, and CHEN, Circuit Judges.

MOORE, 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 

Board correctly held that Electric Boat’s claim is barred by 

the statute of limitations, we affirm.

BACKGROUND

On August 14, 2003, Electric Boat and the Navy entered into a contract (the Contract) for the construction of 

up to six separate Virginia-class nuclear-powered submarines (SSNs), 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 progress 

payments 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 full 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 basis 

and the parties’ obligations under the Contract were entirely contingent on the future availability 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-17. 

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ELEC. BOAT CORP. v. SEC’Y OF THE NAVY 3

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

The Contract incorporates by reference the standard 

Changes Clause 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 includes a “Change-of-Law Clause,” which

provides for a price adjustment in the event that compliance with a new federal law, or a change to existing federal 

laws or regulations, directly increases or decreases Electric 

Boat’s costs of performance. J.A. 279–81 (Clause H-30). 

The Change-of-Law Clause specifies 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 increases Electric 

Boat’s costs of performance “in excess of $125,000 per ship.” 

J.A. 281 (Clause H-30(c)). 

The Change-of-Law Clause requires 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 Clause further 

provides that 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 sets

forth uniform procedures for submitting requests for equitable adjustments 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 Regulation). See 69 Fed. Reg. 55,668 

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4 ELEC. BOAT CORP. v. SEC’Y OF THE NAVY

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

The OSHA Regulation, 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 anticipates that compliance with [the 

OSHA Regulation] will result in an increase in the cost of 

performance [under the Contract] in excess of $125,000 per 

ship.” J.A. 453. 

On June 27, 2007, Electric Boat submitted a cost proposal to the Navy, seeking price adjustments across all six 

submarines. J.A. 459–69. 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. 559–67. 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. 705–10. 

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 pursue 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. Electric Boat 

appealed the Contracting Officer’s Final Decision to the 

Board. The Navy moved for summary judgment that 

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ELEC. BOAT CORP. v. SEC’Y OF THE NAVY 5

Electric Boat’s claim was 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 the 

Navy’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 date 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. Electric Boat appeals. We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(10). 

DISCUSSION

We review the Board’s grant of summary judgment de 

novo. Gates v. Raytheon Co., 584 F.3d 1062, 1067 (Fed. Cir. 

2009). Interpretation 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 Board’s considerable 

experience in construing government contracts. See Gates, 

584 F.3d at 1067. 

2 The Board 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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6 ELEC. BOAT CORP. v. SEC’Y OF THE NAVY

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 

damages 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 

its claim and that Electric Boat’s claim is therefore barred 

by the statute of limitations.

The plain language of the Contract 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 thereunder 

promulgated 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 adjustment 

shall 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. 280 (Clause H-30(b)). Electric Boat’s injury under the 

Contract was the enactment of the OSHA Regulation, the 

compliance with which Electric Boat contends directly increased its costs of performance by more than $125,000 per 

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ELEC. BOAT CORP. v. SEC’Y OF THE NAVY 7

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 provides a right to a 

price adjustment. See J.A. 280. The Board correctly determined 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 claim 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. In Kellogg Brown, the 

Army required that the contractor resolve disputed costs 

with the subcontractor before filing 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. The Contract here, however, expressly states that requests 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)). The Contract therefore required that 

Electric Boat follow the standard equitable adjustment

procedures set forth in Clause H-9 of the Contract. See J.A. 

228, J.A. 334. Although the Change-of-Law Clause 

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8 ELEC. BOAT CORP. v. SEC’Y OF THE NAVY

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 prior 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 That 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 submarines did not exceed the target price until after December 

19, 2006 (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 count for breach of contract arising from the

Navy’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). 

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ELEC. BOAT CORP. v. SEC’Y OF THE NAVY 9

Electric Boat was not required to incur actual costs for 

each submarine before filing a claim for equitable adjustment under the Contract. Instead, when Electric Boat’s 

claim accrued in August 2005, Electric Boat had six years 

to file a claim for an equitable adjustment to the contractual price terms, including the target cost for each submarine. See J.A. 280. That the Navy 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 

amount 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 last two submarines, SSN 782 and SSN 

783, because the Navy did not authorize funds for Electric 

Boat to begin construction on the final two ships until December 28, 2006 and January 10, 2008, respectively. Because Clause H-20 of the Contract made Electric Boat’s 

performance contingent upon funding, Electric Boat argues 

it could not have known the “sum certain” of additional 

costs that it would incur for these submarines until after 

the Critical Date. This contention 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 Boat was not authorized to make expenditures or 

incur obligations in excess of the amounts that the Contracting Officer had specified as available for performance. 

J.A. 245. Clause H-20 does not, however, make Congressional appropriation a condition precedent for seeking a 

price adjustment for each submarine. 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 

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10 ELEC. BOAT CORP. v. SEC’Y OF THE NAVY

adjusted target costs for these two submarines under 

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. 

CONCLUSION

We 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 decision.

AFFIRMED

No Costs.

4 The Board rejected Electric Boat’s argument that 

its claim did not accrue 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 information 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 incurred costs.

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