ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of

-- ) )

Lockheed Martin Aeronautics Company ) ASBCA No. 62209 )
Under Contract No. FA8625

- 07

- C

- 6471 )

APPEARANCES FOR THE APPELLANT: Stephen J. McBrady , Esq

. Skye Mathieson, Esq

. J. Chris Haile, Esq. Michelle D. Coleman, Esq. John Nakoneczny, Esq.

Crowell & Morin g LLP Washington, DC

APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney Caryl A. Potter III, Esq.

Lawrence M. Anderson , Esq.
Dani elle A. Runyan, Esq.

Trial Attorney s

OPINION BY ADMINISTRATIVE JUDGE P AGE ON APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON “LACHES,” OR IN THE

ALTERNATIVE TO STRIKE THE GOVERNMENT’S AFFIRMATIVE DEFENSE

The subject contract required LMA to upgrade 49 C

- 5 Galaxy aircraft. The parties have filed a series of cross

- motions for summary judgment, which largely focus upon the timeliness of the underlying October 15, 2018 claim in the amount of $143,529,290. This claim was asserted by Lockheed Martin Aeronautics Company (LMA, appellant, or contractor) against the Air Fo rce (USAF, Air Force, government, or respondent) for allegedly excessive “over & above” (O&A) work that resulted in greater costs and a cumulative lack of productivity. LMA also moved for partial summary judgment (or in the alternative to strike) the gove rnment’s affirmat ive

defense of laches (app. mot.) . We grant appellant’s motion for partial summary judgment on the issue of whether laches remains an allowable affirmative defense

. 1

1 Because we grant partial summary judgment on this issue, it is unnecessary that we address appellant’s alternative motion to strike the government’s assertion of

laches as an affirmative defense.2 STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

On April 30, 2007, the Air Force awarded Contract No. FA8625

- 07

- C

- 6471 for the “Reliability Enhancement and ReEngining Program” (RERP) to LMA. The

contractor was to provide a set of upgrades to specified C

- 5 aircraft. This included the
installation of new CF6

- 80C2 co mmercial engines and other enhancements to subsystems and major components. This work was done under mostly fixed

- price contract line items (CLINs). (R4, tab 3 at 1

- 13, 28, 73

- 75 )

On October 15, 2018, pursuant to the Contract Disputes Act of 1978, 41 U

. S

. C

. §§ 7101

- 7109 (CDA) and Federal Acquisition Regulation (FAR) 52.233

- 1 DISPUTES, LMA submitted a certified claim in the amount of $143,529,290 and requested a final decision (COFD) from a government contracting officer (CO) (R4,
tab 2 at 2

- 3). 2 Appella nt’s claim alleges that “excessive O&A work changes resulted in an additional, constructive change in the form of cumulative impacts to the performance of the fixed

- price RERP efforts” ( id . at 21). LMA “calculates a total of 428,482 production hours attributable to the cumulative disruptive impacts of O&A changes” in pricing its claim ( id . at 25)

.

By correspondence dated December 7, 2018, the CO declined to issue a COFD
on LMA’s claim of October 15, 2018 (R4, tab 1).

On October 3, 2019, the c ontractor appealed to the ASBCA on the basis of the government’s “deemed denial of its certified claim . . . submitted on 15 October

2018

. ” The Board on October 7, 2019 issued its “Notice of Docketin g” and designated the appeal as ASBCA No. 62209.

Th e government’s answer of December 3, 2019 asserted th e affirmative defense of laches (a nswer at 43).

DECISION

The Parties’ Positions

1. The Appellant

On August 17, 2020, LMA filed “Appellant’s Motion for Partial Summary Judgment on ‘Laches,’ or in the Alternative, to Strike Respondent’s Affirmative

Defense .” LMA argues there are no disputed material facts, and that it is entitled to

2 Where pertinent, the Board adopts the pagination affixed by the parties as part of the

Rule 4 file submission.3 favorable judgment as a matter of law. In the alternative, appellant seeks to strike the government’s affirmative defense of laches. (App. mot. at 1, 4, 7)

LMA contends that although “ [l] aches is an equitable doctrine that is appropriate, in some circumstances, where there is no applicable statute of
limitati ons,” this de fense is unallowable in this appeal. Appellant maintains that “Laches is a ‘gap

- filling’ doctrine that may be applied when there is no statute of limitations, but it is not a cognizable affirmative defense to claims governed by a Congressionally

- enacted s tatute of limitations.” The contractor says that because its
claim was asserted under the CDA and “Congress specifically enacted a six

- year statute of limitations for claims” for this act, this provision “applies to Lockheed Martin’s claim, and there is n o ‘gap’ for the doctrine of laches to fill.” (App. mot. at 2)

Appellant’s argument relies heavily upon the opinion of the United States Supreme Court in SCA Hygiene Prods

. Aktiebolag v. First Quality Baby Prods

. , LLC

, 137 S. Ct. 954 (2017). LMA asserts that this decision “clarified that the equitable defense of laches cannot be invoked against a legal claim when Congress has statutorily prescribed a reasonable limitations period for bringing such claims.” (App

. mot. at 4) Appellant points out that Cong ress amended the CDA by adding the

six

- year statute of limitations through the Federal Acquisition Streamlining Act of

1994. T his amendment applies to all contracts awarded on or after October 1, 1995 and the contract between the government and LMA was aw arded on April 30, 2007, bringing it within the six

- year submi ssion limitation

. Appellant asserts that, in

accordance with SCA Hygiene , the effect of the CDA’s Congressionally

- imposed

statute of limitations is that the affirmative defense of laches is unavailable against LMA’s claim. (App. mot. at 4

- 6) The contractor contends that, “although SCA Hygiene was not a CDA case, the rule against laches [articulated there] is broadly applicable to all legal claims that are subject to a Congressionally

- enacted statute of limitations” ( id . at 6).

2. The Government

The government does not raise any disputed material facts in opposing the motion (gov’t opp’n at 2). It primarily argues that no tribunal has rendered a decision holding that the CDA bars laches as an affirmative defense to claims made under t hat

A ct. The government notes that SCA Hygiene was not a CDA case, and contends that the Board should not extend the holding in that case to encompass that statute. It
asserts that A SBCA pr ecedent, particu l a rly in Anis Avasta Constr. Co ., ASBCA

No. 61107, 18

- 1 BCA ¶ 37,036, is in agreement that the affirmative defense of laches applies to CDA claims. (Gov’t opp’n at 4

- 5)

The government observes that the Board in Anis Avasta relied in part upon S.E.R., Jobs for Progress, Inc. v. United States , 759 F. 2d 1 (Fed. Cir. 1985) ( see 18

- 14 BCA ¶ 37,036 at 180,317). The government says that S.E.R. stands for the proposition
that laches remain s an appropriate affirmative defense if it is necessary for the tribunal to prevent the injustice of a prejudicially

- tardy claim, even where the suit is subject to a statute of limitations. The government quot es from this decision : “laches cannot

ordinaril y be invoked as a defense to legal claims where a statute of limitations is normally available to preclude the recovery on stale claims, unless the offended party has been unmistakably prejudiced by the delay in assertion of the claim .’” (Gov’t opp’n at 3 n.1 ( citing S.E.R.

, 759 F. 2d at 8

- 9) (emphasis in original))

The government also cites FAR 33.203(c) (Applicability) to buttre ss its position
that the CDA’s six

- year claim submission requirement was not intended to preclude the equitable def ense of lach es. It reasons that this FAR provision “preserves all contract claims and defenses of the parties that administrative agency Boards and contracting officers had the authority to consider and decide” prior to the enactm ent and/or amendment of the CDA, “inc luding the equitable defense of laches against contractor ‘equitable adju stment’ claims under contract clauses.” (Gov’t opp’n at 5)

D

ISCUSSION

1. The Sta ndard of Review for Summary Judgment

Summary judgment is a salutary measure for resolving litigation where there are no disputed material facts and the movant has proven that it is entitled to judgment

as a matter of law. Mingus Constructors, Inc. v. United States , 812 F. 2d 1387, 1390 (Fed. Cir. 1987); Federal Rules of Civil Procedure ( F ED

. R

. C IV

. P. ) 56(a). The Board’s duty in evaluating such motions is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 249 (1986). Our assessment

“ necessarily implicates the substantive evidentiary standard of proof that would apply
at the trial on the merits” ( id . at 252 ) , and we look to F ED

. R. C IV

. P . 56 for guidance in deciding su mmary judgment motions (Board Rule 7(c)(2)). The “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute

as to those facts.” Ricci v. DeStefano

, 557 U.S. 557, 586 (2009) ( quot ing Scott v.

Harris , 550 U.S. 372, 380 (2007) )

. “Where the record taken as a whole could not lead

a rational trier of fact to find for the non

- moving party, there is no ‘ genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574 , 587 (1986) (citat ion omitted).

The government as proponent here bears the burden of proving laches as an

affirmative defense

. S ee, e.g. , Cornetta v

. United States , 851 F. 2d 1372, 1380 (Fed. Cir. 1988) (“the burden of proving prejudic e rests with the defendant”). For purposes of the motion, i t must demonstrate specific facts showing that there is a genuine issue

for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (ci ting F ED

. R. C IV

. P

.5 56(e) )

. As nonmovant, the government must “make a showing sufficient to establish
the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.” Celotex , 477 U .S. at 322

. The government cannot rest upon mere denials or conclusory statements, as these are insufficient to withstand summary judgment. Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd ., 731 F. 2d 831, 836 (Fed. Cir. 1984).

2. Affirmative Defenses to a Claim

“Affirmative de fenses” can protect a defending party from the consequences of its actions, even if everything alleged in the claim is true. This remedy is grounded in the notion that equity should be available to avoid suit or ensure a fair result to the one against whom the action was brought, even if th e law might otherwise dictate a
different result. See, e.g.

, Parkinson v. Dep ’ t of Justice , 874 F.3d 710, 724 n .9 (Fed. Cir. 2017); 3 a lso Wisconsin v. Duluth , 96 U.S. 379, 383 (1877) (“if [the affirmative defense] is found to be true in point of act, it will preclude any such action by this court as the plaintiff has prayed for

. ”).

The Board has said :

The Black’s Law Dictionary defines an “affirmative defense” as “A response to a plaintiff’s claim which attacks the plaintiff’s legal right to bring an action, as opposed to attacking the truth of claim.” It further explains that, “In pleading, matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to

it.” Black’s Law Dictionary 60 (6th ed. 1990).

United Technologies Corp

. , Pratt & Whitney Group, Gov’t Engines and Space Propulsion

, ASBCA No. 46880 et al ., 95

- 1 BCA ¶ 27,538 at 137,230

- 31

.

3 T his note reads in full:

See, e.g

., Affirmative Defense , under Defense , Black’s Law Dictionary (10 th e d. 2014) (“A defendant’s assertion of facts and argument that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true...

. Also termed plea in avoidance; plea in justification. Cf . negative defense; confession and avoidance.”).

Parkinson , 874 F.3d at 724 n.9.6 Board Rule 6(b), which sets forth requirements for the gover nment’s pleadings,
calls for the answer to include any affirmative defenses. “Although the Federal Rules
of Civil Procedure do not apply to the Board as an administrative tribunal, we can look

to them for guidance, particularly in areas our rules do not specifically address

. ” Thai

Hai , ASBCA No. 53375, 02

- 2 BCA ¶ 31,971 at 157,920. Thus, w e look to F ED

. R.
C IV

. P . 8(c)(1), which provides that affirmative defenses ( including laches) must be

state d in a party’s response to a pleading. 4 See 5 Charles A lan Wright & Arthur

R. Miller , Federal Practice and Procedure § 1270 ( 3rd e d. (2021) (discussing F ED

. R.

C IV

. P . 8 and affirmative defenses in general ) )

.

3. The Equitable Doctrine of “ Laches” as an Affirmative Defense

The Supreme Court has described laches as “a defense developed by courts of equity” to protect defendants against “unreasonable, prejudicial delay in commencing

suit.” Petrella v. Metro

- Goldwyn

- Mayer, Inc ., 572 U.S. 663, 667

- 68 (2014) . The theory of laches, which is derived from the concept of equity and is not predicated

up on a statutory time limit, allows a tribunal to dismiss a suit where a party’s:

‘ lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence.’ Benedict v. City of New York , 250 U.S. 321, 328, 39 S. Ct. 476 , 478, 63 L.Ed. 1005 [(1919)]. A suit in equity may f ail though ‘not barred by the act of

limitations.’ McKnight v. Taylor , [42 U.S. 161, 168 (1843 ) ]; Alsop v. Riker , 155 U.S. 448, 15 S. Ct. 162, 39 L.Ed. 218 [1894)].

Equity eschews mechanical rules; it depends on flexibility. Equity has acted on the princ iple that ‘laches is not, like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced,

— an inequity founded upon some change in the condition or relations of the property or the parties.

Holmberg v. Armbrecht , 327 U.S. 392, 396 (1946) (further citations omitted)

.

4 F ED

. R. C IV

. P . 8(c)(1) requires that a party responding to a pleading must “affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. ”7 Prevailing on the defense of laches requires its proponent to furnish “‘proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101,

121

- 22 (2002) ( quot ing Kansas v. Colorado , 51 4 U.S. 673, 687 (1995) (further citation omitted) )

.

The ASBCA has held:

Laches is an equitable doctrine that denies relief to “one who has unreasonably and inexcusably delayed in the

assertion of a claim.” S.E.R., Jobs for Progress, Inc. v.
United States , 759 F.2d 1, 5 (Fed. Cir. 1985) (quoting Brundage v. United States , 504 F.2d 1382, 1384, 205 Ct. Cl. 502 (Ct. Cl. 1974).

The Boeing Co ., ASBCA No. 5485 3, 12

- 1 BCA ¶ 35,054 at 172,197

.

4. The Statute of Limitations under the Contract Disputes Act

Congress added th e six

- year statute of limita tions to the CDA by the Federa l Acquisition Streamlining Act of 1994 (FASA) (Pub. L. No. 103

- 355, § 2351(a),

108 Stat. 3243, 3322 (1994)). F ASA § 10001(b)(2)(A)(2) provides that amendments:

[M] ade by this Act shall apply to contract s in effect on October 1, 1995 “ to the extent and in the manner prescribed in the final regulations

. . . .” 108 Stat. 3404. The final regulations at FAR 33. 206(a) state in relevant
part: “This 6

- year time period does not apply to contracts awarded prior to October 1, 1995. ”

JRS Management , ASBCA No. 57238, 10

- 2 BCA ¶ 34,571 at 170,452

.

After examining the legislative history of 41 U.S.C. § 7103(a)(4) (A) , the
Federal Circuit concluded that the CDA’s statute of limitations was not a jurisdictional requirem ent

. Sikorsky Aircraft Corp. v. Un ited States , 773 F.3d 1315, 1322 (Fed. Cir. 2014 ( “ § 7103 does not have any special characteristic that would warrant making an exception to the general rule that filing deadlines are not jurisdictional. We conclude that § 7103 is not jurisdictional

. . . . ”). The court reviewed the requirement that contractor claims must be brought within six years of the accrual of a claim:

Section 7103(a)(4)(A) states that “[e]ach claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against8 a contractor relating to a contract shall be submitted within 6 years a fter the accrual of the claim.” 41 U.S .C. § 7103(a)(4)(A)

. A claim accrues as of “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. For liability to be fixed, some injur y must have occurred. However, monetary damages need not have been

incurred.” 48 C.F.R. § 33.201.

Sikorsky , 773 F.3d at 1320.

The CDA statute of limitations continues as a time bar to claims that were not presented to the CO within the defined period

. Environmental Safety Consultants,

Inc ., ASBCA No. 58343, 1 4

- 1 BCA ¶ 3 5,681 at 17 4,666 . It remains an affirmative

defense before the Board ( see, e.g ., Kamaludin Slyman CSC , ASBCA No. 62006 et al.

, slip. op. at 12 (April 29, 2021) ; see also F ED

. R. C IV

. P

. 8(c)(1)).

Analysis of Appellant’s Motion

1. The Substance of the Government’s Affirmative Defense of Laches

The gover nment’s answer details its reasons for seeking to deny LMA the complete six years set forth in 41 U.S.C. § 7103(a)(4) (A) to submit its claim. The
government argues that it would be unfairly prejudiced by allowing appellant the full statutory period , and justifies the Board’s imposition of a shorter, undefined interval as follows:

Appellant’s unreasonable delay in making its “cumulative impact” claim (s) with respect to unidentified “thousands of MDRs [Manufacturing Deficiency Reports] ” and hundreds of thousands of unidentified hours of “O&A work” ( e.g. , Complaint paragraphs 51, 58, 67 and 134), with the obviously inc urabl e prejudice to Respondent to be able to defend against so many “thousands” of individual MDRs/O&A hours and their alleg e d “impact on

fixed

- price CLINs for 21 aircraft in Lots 3

- 5, ” is a textbook case of laches precluding Appellant’s claim(s) as Respondent asserted in its answer to Complaint paragraph

126 above.

(Answer at 43)9 2. The United States Supreme Court’s Decision s in SCA Hygiene and Petrella Preclude the Affirmative Defense of Laches in CDA Appeals

The government’s argument that laches remains a via ble affirmative defense is unpersuasive ; it ignores the breadth of the Supreme Court’ s decision s regarding the relationship between federal statutes of limitation and the common law affirmative

defense of laches

. The government’s contention that the holding in SCA Hygiene is

not relevant to a CDA claim because that case arose from a Patent Act matter disregards the deliberately broad language of this decisi on. It also fails to recognize
the Court’s repeated endorsement of Pet rell a , 572 U.S. 663 (2014), which i t f avorably

relied upon throughout ( see, e.g ., SCA Hygiene, 137 S. Ct. at 959

- 64). In responding to a challenge over whether the ruling in Petrella (which dealt with the Copyright Act)

extended to a Patent Act issue in SCA H ygiene , the Court in the latter decision reiterated the general principle that laches is not a n available def ense where there is a legislatively

- enacted statute of limitations:

[The Court held in Petrella ] that laches cannot defeat a damages claim brought within the period prescribed by the Copyright Act’s statute of limitation s

. Petrella , 572 U.S.,

at

---- , 135 S. Ct., at 1972

- 1975. And in so holding, we spoke in broad terms. See id ., at

--- - --- , 134 S. Ct.

at 1974 (“ [I]n the face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief.”)

SCA Hygiene , 137 S. Ct. at 960 ( emphasis added)

.

The Court in SCA Hygiene also emphasized the separat e functions of judges

and the le gislative branch, just as it had in Petrella ( see, e.g ., SCA Hygiene

, 137 S. Ct.

at 960

- 61). It warned that it is inappropriate for a judge to allow an equitable doctrine such as laches to limit a party’s righ ts where that party complied with a Congressionally

- enacted statut e of limitations . The Court acknowledge d that laches (a judge

- made doctrine that arose from equity) and statutes of limitation (enactments of the legislature explicitly circumscribing the per iod in which a claim can be brought) are both intended to shield those defending against untimely claims. Id

.

Although the legislative and judicial approaches share the same goal of discouraging stale or overly

- late claims , the rubric under which timeliness is
established is very dissimilar

. Chief among the differences is that trib unals rely on the

doctrine of laches to decide on a case

- by

- case b asis whether a particular claim was brought with in a reasonable period , whereas legislatures adopt firm temporal limits for every claim brought under a specific law

. Tribunals consider whether the party asserting laches was unjustly or unreasonably prejudiced by the timing of the claim

,10 whereas this is not a consideration in assessing whether a statut e of limitations has
been met.

The Court in SCA Hygiene warned against allowing judges to usurp Congressional power by permitting parties continued reliance on laches where the controlling statute set a time limit:

The enactment of a statute of limitations necessarily reflects a congressional decision that the timeliness of covered claims is better judged on the basis of a generally

hard and fast rule rather than the sort of case

- specific judicial determination that occurs when a laches defense is

asserted. Therefore, applying laches within a limitations period specified by Congress would give judges a “legislation

- overriding” role that is beyond the Judiciary’s

power. [ Petrella ], 134 S. Ct. at 1974. As we stressed in

Petrella

, “courts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” Id ., at

---- , 134 S. Ct.,

at 1 967.

SCA Hygiene, 137 S. Ct. at 960

.

Although the government correctly observes that the United States Court of Appeals for the Federal Circuit, the ASBCA’s appellate body, has not applied SCA Hygiene to the CDA or otherwise ruled that laches is not available as an affirmative defense under that act, it is unnecessary that the Board wait for it to d o so before ruling

on this motion . While it would be preferable if the Federal Circuit had been given the opportunity to previously consider this issue, this Board is ultimately subject to the precedent of the United States Sup reme Court and will adhere t o its decisions

.

We note that the Federal Circu it favorably appli ed the holdings in SCA Hygiene
and Petrella in litigation outside the Copyright Act and the Patent Act

. 5 In Nat ’ l Org

. of Veterans ’ Advocates, Inc. v. Sec’y of Veterans Affairs , 981 F.3d 1360 (Fed. Cir. 2020) ( NOVA ) , the court held that an advocacy group’s “challenge is timely under the

six

- year statute of limitations provided by 28 U.S.C. § 2401(a) and that Federal Circuit Rule 15(f), establishing a 60

- day time limit for bringing [a petit ion under 38 U.S.C.

5 But cf. Inserso Corp. v. United States , 961 F.3d 1343 (Fed. Cir. 2020), a post

- award bid protest in which the dissent regarded the “ Blue & Gold ‘Waiver Rule’” cited by the majority as “und ermined by the reasoning in SCA Hygiene

. ” Inerso Corp ., 961 F.3d 1352

- 53. It was Judge Reyna’s view that this “rule runs afoul of the separation of powers principle articulated” by the Supreme Court. Id.

at 1353.11 § 502] is invalid.” Id. at 1365. The Federal Circuit concluded that local court rules

cannot “ either expand[] or limit [] the time to file a claim where a statutory time limit applies. ” Id. at 1384. The court recognized its power unde r 28 U.S.C. § 2071(a) “to promulgate rules for conducting court business,” but said that “ ‘ [s]uch rules shall be consistent with Acts of Congress.’” Id. (quoting 28 U.S.C. § 2071(a)

. I t found “unavailing” the argument that the holdings in SCA Hygiene and Petrella should be distinguished “on the ground that they dealt with statutory time limits specific to a particular area of the law. ” Id. at 1385. The court affirmed that “Congress ‘kn [o]w[s] how to impose’ a more limited statutory time limit on challenges to agency action ‘when it [chooses] to do so.’” Id. (citations omitted).

We find t he government’s reliance upon decisions involving laches that were

rendered by various tribunals ( b ut pre

- date SCA Hygiene ) is misplaced, as these do not reflect the current status of the law. Nor are we bound by Anis Avasta

, 18

- 1 BCA ¶ 37,036 or other ASBCA decisions discussing the doctrine of laches that were

rendered after the issuance of SCA Hygien e . The parties did not argue nor did the Board consider the effect of that decision (or Petrella ) when it ruled in those appeals.

3. FAR 33.203(c)

, Does Not Preserve Laches as an Affirmative Defense in an Appeal under the Contract Disputes Act

We are not convinced by the government’s unsupported argument that

FAR 33.203(c)

, (Applicability) somehow overrides decisions of the Supreme Court or the dictates of Congress in 41 U.S.C. § 7103(a)(4)(A), or preserves the affirmative defense of laches; see, e.g ., F ED

. R. C IV

. P . 56(e) Failing to Properly Support or
Address a Fact.

FAR 33.203(c) (Applicability) provides:

(c) This part applies to all disputes with respect to contracting officer decisions on matters “ arising under ” or “relating to” a contract. Agenc y Boards of Contract Appeals (BCAs) authorized under the Disputes statute continue to have all of the authority they possessed before the Disputes statute with respect to disputes arising under a contract, as well as authority to decide disputes relating t o

a contract. The clause at 52.233

- 1, Disputes, recognizes the “all disputes” authority established by the Disputes statute and states certain requirements and limitations of the Disputes statute for the guidance of contractors and contracting agencies. The clause is not intended to affect the rights and obligations of the parties as provided by the Disputes statute or to constrain the authority of the12 statutory agency BCAs in the handling and deciding of contractor appeals under the Disputes statute.

48 C.F.R. 33.203(c) (underlining added)

We do not read the FAR’s authorization of Boards of Contract Appeals to “have all of the authority they possessed before the Disputes statute with respect to disputes arising under a contract, as well as authority to decide disputes relating to a

contract” as the wide

- ranging grant of power espoused by the government . Nothing in FAR 33.203(c) preserves the pre

- FASA affirmative defense of laches, and the government does not substantiate that the regulation supersed es t he holding s in SCA Hygiene and Petrella that laches is not a cognizable defense where the sta tute of
limitations is satisfied

.

The government’s reliance on this regulation to thwart o r override ruling s of the Supreme Court is in correct as a matter of law, and it has not established a di sputed

material fact that we would be required to construe in its favor ( see “ The Standard for Review for Motions for Summary Judgment,” supra ). The government’s “conclusory

statements or completely insupportable, specious or conflicting explanations or excuses will not suffice to raise a g enuine issue of material fact.” Range Tech. Corp.

, ASBCA No. 51953 et al

. , 04

- 1 BCA ¶ 32,456 at 160,545 ( quo ting Paragon Podiatry
Lab

. , Inc. v. KLM Labs

. , Inc. , 984 F.2d 1182, 1190 (Fed. Cir. 1993)).

CONCLUSION

Appellant has demonstrated there are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Where “Congress explicitly puts a limit upon the time for enforc ing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive

. ” Holmberg , 327 U.S. at 395

. We grant LMA’s motion for partial summary judgment on the issue of laches, which is not

available to the government as an affirmative defense aga inst the CDA claim brought by the contractor

.

Dated: June 22 , 2021

REBA PAGE Administrative Judge
Armed Services Board of Contract Appeals (Signatures continued)13 I concur I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman
Armed Services Board of Contract Appeals OWEN C. WILSON Administrative Judge
Vice Chairman
Armed Services Board of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 62209, Appeal of Lockheed Martin Aeronautics Company, rendered in conformance with the Board’s
Charter.

Dated: June 22, 2021

PAULLA K. GATES

- LEWIS Recorder, Armed Services Board of Contract Appeals