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 & Moring 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.

Danielle A. Runyan, Esq.

 Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE PAGE 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 Force (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 government’s affirmative 

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 commercial 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 Appellant’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 contractor 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 Docketing” and designated 

the appeal as ASBCA No. 62209.

The government’s answer of December 3, 2019 asserted the affirmative defense 

of laches (answer 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 

limitations,” this defense 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 statute 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 no ‘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 Congress amended the CDA by adding the 

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

1994. This amendment applies to all contracts awarded on or after October 1, 1995 

and the contract between the government and LMA was awarded on April 30, 2007, 

bringing it within the six-year submission 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 that 

Act. 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 ASBCA precedent, particularly 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 18-1 
4

BCA ¶ 37,036 at 180,317). The government says that S.E.R. stands for the proposition 

that laches remains 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 quotes from this decision: “laches cannot 

ordinarily 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 buttress its position 

that the CDA’s six-year claim submission requirement was not intended to preclude 

the equitable defense of laches. 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 enactment 

and/or amendment of the CDA, “including the equitable defense of laches against 

contractor ‘equitable adjustment’ claims under contract clauses.” (Gov’t opp’n at 5)

DISCUSSION

1. The Standard 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 (FED. R. CIV. 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 FED. R. CIV. P. 56 for guidance in 

deciding summary 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) (quoting 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) 

(citation omitted).

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

affirmative defense. See, e.g., Cornetta v. United States, 851 F. 2d 1372, 1380 (Fed. 

Cir. 1988) (“the burden of proving prejudice rests with the defendant”). For purposes 

of the motion, it must demonstrate specific facts showing that there is a genuine issue 

for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citing FED. R. CIV. 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 defenses” 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 the 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 also 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 This note reads in full: 

See, e.g., Affirmative Defense, under Defense, Black’s Law 

Dictionary (10th ed. 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 government’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, we look to FED. R.

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

stated in a party’s response to a pleading.4 See 5 Charles Alan Wright & Arthur 

R. Miller, Federal Practice and Procedure § 1270 (3rd ed. (2021) (discussing FED. R.

CIV. 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 

upon 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 fail 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 principle 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 FED. R. CIV. 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) (quoting Kansas v. Colorado, 514 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. 54853, 12-1 BCA ¶ 35,054 at 172,197.

4. The Statute of Limitations under the Contract Disputes Act

Congress added the six-year statute of limitations to the CDA by the Federal 

Acquisition Streamlining Act of 1994 (FASA) (Pub. L. No. 103-355, § 2351(a), 

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

[M]ade by this Act shall apply to contracts 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 

requirement. Sikorsky Aircraft Corp. v. United 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 against 
8

a contractor relating to a contract shall be submitted within 

6 years after 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 injury 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, 14-1 BCA ¶ 35,681 at 174,666. 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 FED. R. CIV. P. 8(c)(1)).

Analysis of Appellant’s Motion

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

The government’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 incurable prejudice to Respondent to be able to 

defend against so many “thousands” of individual 

MDRs/O&A hours and their alleged “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 Decisions in SCA Hygiene and Petrella 

Preclude the Affirmative Defense of Laches in CDA Appeals

The government’s argument that laches remains a viable affirmative defense is 

unpersuasive; it ignores the breadth of the Supreme Court’s decisions 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 decision. It also fails to recognize 

the Court’s repeated endorsement of Petrella, 572 U.S. 663 (2014), which it favorably 

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 Hygiene, the Court in the latter decision 

reiterated the general principle that laches is not an available defense 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 limitations. 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 separate functions of judges 

and the legislative 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 rights where that party complied with a 

Congressionally-enacted statute of limitations. The Court acknowledged that laches (a 

judge-made doctrine that arose from equity) and statutes of limitation (enactments of 

the legislature explicitly circumscribing the period 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 tribunals rely on the 

doctrine of laches to decide on a case-by-case basis whether a particular claim was 

brought within 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 statute 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 1967.

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 do 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 Supreme Court and will adhere to its decisions.

We note that the Federal Circuit favorably applied 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 petition 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 “undermined 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 under 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). It 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 the government’s reliance upon decisions involving laches that were 

rendered by various tribunals (but 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 Hygiene. 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., FED. R. CIV. 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. Agency 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 to 

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 the 
12

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 supersedes the holdings in SCA 

Hygiene and Petrella that laches is not a cognizable defense where the statute of 

limitations is satisfied.

The government’s reliance on this regulation to thwart or override rulings of the 

Supreme Court is incorrect as a matter of law, and it has not established a disputed 

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 genuine issue of material fact.” Range Tech. Corp., 

ASBCA No. 51953 et al., 04-1 BCA ¶ 32,456 at 160,545 (quoting 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 enforcing 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 against 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