ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS

ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

Pending before the Board is the “Government’s Motion for Summary Judgment to 

Deny Appellant’s Claim as Untimely Under the Contract Disputes Act’s Statute of 

Limitations” filed by the Defense Contract Management Agency (DCMA or 

government). In 2011, the government awarded a requirements contract for semitrailers 

to appellant, Globe Trailer Manufacturing, Inc. (Globe). Globe asserts that the 

government required constructive changes to the contract. In March 2014, after Globe 

failed to pass first article testing, the government terminated the contract for convenience. 

In November 2014, Globe submitted its termination settlement proposal (TSP I) 

which did not include a claim for constructive change costs. In October 2016, the 

termination contracting officer issued a final decision finding partial merit and awarding 

Globe $987,345.76 out of a claimed amount of $7,233,387.89. Globe timely appealed to 

the Board, where the matter was docketed as ASBCA No. 60979. While that appeal was 

pending, in June 2017, Globe filed a revised termination settlement proposal (TSP II) 

seeking $21,003,162.54. Significantly, the TSP II asserted amounts due for the 

termination settlement and the alleged constructive changes in a combined claim, without 

asserting a sum-certain dollar amount for the alleged constructive changes. Following 

settlement discussions between the parties, in July 2019, the Board issued its decision on 

the parties’ cross-motions for summary judgment regarding the proper calculation of a 

termination settlement for a commercial items contract requiring first item testing. 

Relevant to this appeal, the decision held that Globe’s constructive change claims were 

not properly before the Board because they had not been presented to the contacting 

officer in TSP I. 

Appeal of - )

)

Globe Trailer Manufacturing, Inc. ) ASBCA No. 62594

)

Under Contract No. W56HZV-11-D-0204 )

APPEARANCE FOR THE APPELLANT: Rodney Stieger, Esq.

 Stinson LLP

 Denver, CO

APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq.

 DCMA Chief Trial Attorney

Michael T. Patterson, Esq.

 Trial Attorney

 Defense Contract Management Agency

 Chantilly, VA
2

Globe and the government again entered into settlement discussions, and in 

June 2020, Globe provided the government with additional calculations and supporting 

documentation regarding its constructive change claims, which it characterized as a 

supplement to its TSP II (TSP II Supplement). After the government informed Globe 

that it did not believe Globe’s submission was a valid claim, and would not issue a final 

decision, Globe appealed to the Board on the basis of a deemed denial. The Board 

docketed this appeal as ASBCA No. 62594. In January 2021, the Board issued its 

decision denying the government’s motion to dismiss for lack of subject matter 

jurisdiction, holding that Globe’s TSP II was not a valid CDA claim because it did not 

present a sum certain, but that the TSP II Supplement was a valid claim. The government 

now moves for summary judgment, asserting that the TSP II Supplement was submitted 

more than six years after claim accrual. Globe opposes the government’s motion, 

alleging that its claim did not accrue until the parties’ settlement discussions reached an 

impasse; because equitable tolling precludes the government’s motion; and that the 

government’s motion should be denied because discovery is not complete. For the 

reasons stated below, we grant the government’s motion, enter summary judgment in 

favor of the government, and deny Globe’s appeal related to the alleged constructive 

changes. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

The Board previously issued two decisions related to this appeal. Globe Trailer 

Manufacturing, Inc. ASBCA No. 60979, 19-1 BCA ¶ 37,392; and Globe Trailer 

Manufacturing, Inc., ASBCA No. 62594, 21-1 BCA ¶ 37,795. Familiarity with those 

decisions is assumed, and only facts relevant to this decision are presented here. 

I. The Contract

On September 21, 2011, the United States Army awarded Contract No. W56HZV11-D-0204 and Delivery Order 0001 to Globe (R4, tab 2 at G-312, tab 3 at G-399). The 

contract was a five-year requirements contract for M870A4 low bed semitrailers and 

related deliverables (R4, tab 1 at G-197-98, tab 2 at G-313-31). The M870A4 is a trailer 

intended for military use on diverse surfaces and climates. The contract required 

successful first article testing before the manufacture of production quantities could begin 

(id. at G-377). The contract incorporated by reference the clauses at Federal Acquisition 

Regulation (FAR) 52.243-1, CHANGES – FIXED PRICE (AUG 1987) (id. at G-375) 

and Defense Federal Acquisition Regulation Supplement (DFARS) clause 252.243-7002, 

REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (id. at G-376). The 

contract also incorporated by reference FAR 52.233-1, DISPUTES (JULY 2002) (id. 

at G-375).
3

II. Contract Administration Relevant To Globe’s Alleged Constructive Changes

Globe asserts constructive changes relating to 1) a change in the gross vehicle 

weight; 2) a requirement to build trailer deck extensions outside the payload area; 

3) designating defective electrical specifications; 4) requiring a trailer attachment shackle 

for the loaded prime mover; 5) requiring a quality assurance plan exceeding contractual 

requirements; 6) “recommending” that Globe provide an additional trailer and additional 

testing; and 7) other miscellaneous changes (Globe Trailer, 21-1 BCA ¶ 37,795 

at 183,496). We briefly address contractual events relevant to the accrual of Globe’s 

constructive change allegations. 

On January 10, 2012, the U.S. Army Procurement Contracting Officer (PCO) sent 

Globe a letter stating that the government intended to revise the contract specifications by 

requiring Globe to raise the trailer deck height and change its proposed trailer tires

(R4, tab 4 at G-404). On January 31, 2012, Globe submitted Engineering Change 

Proposal (ECP) GTM870A4ECP001 (R4, tab 5 at G-406-07). The ECP proposed various 

changes to the trailer (id. at G-408) resulting in a change in the weight of the trailer from 

19,259 lbs. to 20,100 lbs. (id. at G-407). The parties executed bilateral modification 

No. P00001 on April 13, 2012 incorporating ECP GTM870A4ECP001 and its design 

changes to the test and production vehicles into the contract, and adjusting contract 

pricing (R4, tab 7 at G-426-27). 

On May 1, 2012, the PCO issued a letter to Globe stating that the government 

intended to revise the requirement for the shakedown test to be performed on an initial 

production lot trailer by requiring Globe to deliver an unpainted trailer for the shakedown 

test. The letter requested that Globe “provide a written concurrence affirming the above 

changes will have no cost or schedule impact to the contract” and requested that Globe 

submit a proposal for evaluation before incurring any additional costs (R4, tab 10).

Globe did not request a cost increase to the contract as a result of this change.

On July 30, 2012, Globe submitted a shakedown test report to the Army noting a 

trailer curb weight of 21,885 pounds (R4, tab 11 at G-475). On August 14, 2012, the 

Army conducted a shakedown test review, noting that the trailer was overweight (R4, 

tab 13 at G-574). In a letter dated August 21, 2012 to the PCO, Globe requested that the 

trailer’s curb weight be increased in light of the past and anticipated engineering changes 

to between 21,600 and 23,000 pounds (R4, tab 14 at G-582). In a letter dated 

September 21, 2012 to Globe, the PCO stated that “any increase over the 20,100 pound 

Trailer weight approved via ECP GTM870A4ECP001 on 13 Apr 2012 is unacceptable”

(R4, tab 16 at G-585).

Globe’s December 21, 2012 report on its Contractor Corrective Action Vehicle 

Test (CCAVT) conducted from December 13, 2012 to December 19, 2012 stated that 

Globe provided a trailer for testing weighing 19,960 pounds (R4, tab 18 at G-593). The 

parties conducted testing on the trailers from January 7, 2013 to January 17, 2013 at 
4

Globe’s facility in Bradenton, Florida (First Production Verification Inspection 

(FPVI) #1). Several critical hardware problems arose that directly impacted the trailer 

configuration, and the government disapproved of the FPVI (R4, tab 19). 

In a letter to Globe dated February 20, 2013, the PCO stated that the government 

was waiving the deck width requirement of no more than two feet of spacing between 

each bracket in the wheel well areas for the FPVI only. The PCO further explained that if 

current support with greater than two feet of spacing passes Production Verification 

Testing (PVT), then the government would also waive the requirement for production. 

(R4, tab 21)

Globe conducted a second FPVI (FPVI #2) between February 25, 2013 and 

March 6, 2013, and its final report, dated April 2, 2013, stated that the trailer tested is 

“production representative” and “meets the requirements established by ATPD 2395C” 

(R4, tab 23 at G-604-05). On April 18, 2013, the Army notified Globe that it had 

determined Globe “has met all of the requirements for FPVI and is ready to progress to 

Production Verification Testing (PVT)” (R4, tab 24 at G-664).

The parties executed Modification No. P00004 to the contract on May 3, 2013 

(R4, tab 25 at G-666). The modification funded CLIN 0003AC for $317,800 to provide 

one test service representative at Aberdeen Test Center (ATC) and one test service 

representative at Yuma Proving Ground Test Center (YPG) to support training and PVT 

for a period of eight months at ATC and six months at YPG (id. at G-672).

Globe identified a problem with the trailer shackle in its Failure Analysis 

Corrective Action Report (FACAR), dated May 29, 2013 (R4, tab 26 at G-697). The 

report indicated that Globe had already “designed a new clevis which will work to 

properly couple the prime movers with the M870A4” (id.), and that Globe load tested the 

new clevis and delivered the clevises to test sites the week ending May 24, 2013 (id. 

at G-698). The clevis was independently load tested and results received on May 28, 

2013 (id.). The Army halted the PVT in June 2013 due to a deformation in the cross 

members designed to reduce trailer weight (R4, tab 27). In July 2013, Globe provided a 

“M870A4 Main Deck Cross-Member Deformation Analysis” report (R4, tab 29). 

Globe’s FACAR, dated June 25, 2013, identified a deficiency with the 

M870A4 trailer connection pin assignments for the electrical system (R4, tab 28 

at G-732). The FACAR proposed a corrective action plan addressing the wiring problem 

(id. at G-732-34). On September 9, 2013, the government sent an email to Globe 

explaining why Globe’s proposed wiring solution was not going to work and provided 

history related to the trailer wiring (R4, tab 31). In a letter to the PCO dated September 

23, 2013, Globe verified that it would “perform limited testing of trailer PVT Phase II-I 

at Aberdeen Proving Grounds,” “incur all shipping costs,” and “incur the cost of 

providing test site support representatives” (R4, tab 32 at G-860). 
5

In a letter dated January 6, 2014, Globe requested that the government expand the 

waiver regarding the bracket spacing for the deck width extensions by removing the 

wording “in the wheel well areas” (R4, tab 38). Globe further noted that the current 

number of brackets operated satisfactorily during loading of the largest piece of 

equipment during PVT Phase I (id.). In a letter dated January 15, 2014, the government 

denied Globe’s request to expand the waiver for the bracket spacing for the deck width 

extensions because Globe did not identify the areas of the trailer for which it wanted 

the spacing waiver extended, nor did Globe specify what the bracket spacing would be 

(R4, tab 39).

On March 11, 2014, the U.S. Army terminated the Contract for convenience of the 

Government stating such action was taken pursuant to the FAR 52.212-4(l) termination 

for convenience clause for commercial item contracts (R4, tab 41). Globe ceased 

performing work on the contract.

III. Globe’s Termination Settlement Proposals And The Parties’ Settlement 

Negotiations

On November 12, 2014, Globe submitted its TSP I using the Standard Form 1435

(inventory method), at the direction of the contracting officer, in the amount of 

$7,233,387.89 (R4, tab 48). The TSP did not include any amount for constructive change 

costs. Nearly two years later, on October 7, 2016, the Termination Contracting Officer 

(TCO) issued a final decision awarding Globe $977,345.76 (R4, tab 49 at G-1041). On 

December 29, 2016, Globe appealed the TCO’s final decision on its TSP I to the Board. 

The Board docketed the appeal as ASBCA No. 60979. In February 2017, the parties 

jointly requested that Globe be permitted to submit a revised TSP calculated as a 

commercial item settlement (mot. Feb. 24, 2017). Following this request, Globe asserts 

that DCMA counsel contacted Globe about settling Globe’s appeal using current fiscal 

year funds (compl. ¶ 57).

1

 The parties continued settlement negotiations, off and on, 

through June 2020. 

On June 30, 2017, Globe submitted its TSP II alleging entitlement to 

$21,003,162.54 (R4, tab 50). In this revised TSP, Globe asserted entitlement to 

additional money under both the commercial items and standard termination clauses (id. 

at G-1048). Moreover, Globe included a discussion of the constructive changes but never 

quantified its claimed entitlement from these alleged changes (id. at G-1082-89); Globe 

Trailer, 21-1 BCA ¶ 37,795 at 183,499. Rather, Globe’s TSP asserted claimed costs for 

all work performed without breaking-out the cost of the asserted extra-contractual 

 1 Globe has not supported this proposed finding of fact with a declaration. We cite 

Globe’s assertions to provide context, but, even assuming the truth of the 

assertion, we do not find it to be material to the resolution of the appeal. 
6

constructive changes. Globe Trailer, 21-1 BCA ¶ 37,795 at 183,496.2

 The TCO did not

issue a final decision on Globe’s TSP II.

The parties filed cross-motions for summary judgment in ASBCA No. 60979 

regarding the proper interpretation of the termination settlement provision for 

commercial item contracts when the contract also contained the First Article Approval 

clause at FAR 52.209-4. On July 10, 2019, the Board issued its decision on the parties’ 

cross-motions. In our decision, we noted that “[t]he government has not moved to 

dismiss Globe’s constructive change claims on the basis of lack of jurisdiction . . . we 

leave open the question of whether something in the record could support jurisdiction for 

Globe’s constructive change claims.” Globe Trailer, 19-1 BCA ¶ 37,392 at 181,786 n.6. 

Following the Board’s decision, the parties resumed settlement negotiations. 

On February 4, 2020, Globe submitted its “Position Statement for Settlement 

Discussion concerning Constructive Changes Contract No. W56HZV-11-D-0204” 

(R4, tab 51). The letter includes a section entitled “Legal Analysis and 

Damages” describing six alleged constructive changes to the contract by the Army (id. 

at G-1166-70). However, the letter did not assert a dollar value for the asserted

constructive changes.

By email on June 11, 2020, Globe provided supplemental materials related to the 

asserted constructive changes, and requested a contracting officer’s final decision (R4, 

tabs 52-54). Among these materials, Globe attached an excel spreadsheet which asserted 

constructive change damages of $4,565,642.58 (R4, tab 53 at G-1273). In a second email 

the same day, Globe provided a certification dated June 9, 2020 and signed by Globe 

President Jeffery K. Walters, Sr. (R4, tab 55 at G-1277). 

By email on June 25, 2020, the DCMA trial attorney informed Globe that the TCO 

would not be issuing a final decision since DCMA did not believe that Globe had 

submitted a properly certified claim (R4, tab 56). On June 29, 2020, Globe appealed to 

the Board alleging a deemed denial its TSP II Supplement claim. Specifically, Globe 

stated that it was appealing the “deemed denial of its Certified Claim for constructive 

changes” and that the “amount in dispute is $4,565,642.58” (Notice of Appeal, Jun. 29, 

2020). On July 2, 2020, the Board docketed the appeal as ASBCA No. 62594. On 

July 31, 2020, the government filed a motion to dismiss Globe’s appeal for lack of 

subject matter jurisdiction. On January 28, 2021, we denied the motion to dismiss, 

holding that Globe’s June 2017 TSP II was not a valid claim, because it did not contain a 

 2 Globe provided a breakdown of its costs, for example providing detail on direct labor 

costs; however, the direct labor was for all work performed without breaking out 

the work performed pursuant to the contract from the work performed for the 

allegedly extra-contractual constructive changes (R4, tab 50 at G-1097). We see 

no way to break-out the alleged constructive change costs, and Globe has not 

proposed a way to perform the calculation. 
7

sum certain for the constructive change claims, but that Globe’s June 2020 TSP II

Supplement was a valid claim. Globe Trailer, 21-1 BCA ¶ 37,795 at 183,498-500.

DECISION

I. Standard Of Review

“We will grant summary judgment only if there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). A material fact is one that 

may affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). “The moving party bears the burden of establishing the absence of any 

genuine issue of material fact and all significant doubt over factual issues must be 

resolved in favor of the party opposing summary judgment.” Mingus Constructors, Inc. 

v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Once the moving party has met 

its burden of establishing the absence of disputed material facts, then the non-moving 

party must set forth specific facts, not conclusory statements or bare assertions, to defeat 

the motion. Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 

1984). “A genuine issue of material fact arises when the nonmovant presents sufficient 

evidence upon which a reasonable fact finder, drawing the requisite inferences and 

applying the applicable evidentiary standard, could decide the issue in favor of the 

nonmovant.” C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1541 (Fed. Cir. 

1993) (citation omitted).

II. The Parties’ Settlement Negotiations Did Not Delay Claim Accrual

Globe’s primary argument is that its constructive change claim is timely because 

its cause of action did not accrue until there was an impasse in settlement negotiations. 

Here, Globe attempts to combine its constructive change claim with its termination for 

convenience claim to assert what it attempts to characterize as a single cause of action, 

that did not accrue until the later of the accrual dates – that is the accrual for its 

termination settlement proposal (app. resp. at 8-11). While Globe is correct that a 

termination settlement proposal claim does not accrue until the parties reach an impasse 

in negotiations (see, e.g., Thorpe See-Op Corp., ASBCA Nos. 58960, 58961, 15-1 BCA 

¶ 35,833 at 175,246), Globe’s error is in attempting to bring its constructive change 

claims within the scope of the termination settlement. Globe’s notice of appeal 

specifically stated that it was appealing the deemed denial of its constructive change 

claim in the amount of $4,565,642.58. Globe’s termination settlement claim is the

subject of the related appeal ASBCA No. 60979. 

Globe is alleging that the government constructively changed its contract. The 

Changes clause, FAR 52.243-1(b) requires that the government make an equitable 

adjustment to the contract when the government makes a change to the contract that 
8

causes an increase or decrease in the cost or time required for performance. 

Additionally, the FAR provides:

Accrual of a claim means 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. 

FAR 33.201. As detailed in the statement of facts above, the events fixing liability for 

Globe’s constructive change claims occurred during the first article testing, generally in

2012 and 2013. As the government notes, at the latest, the claims must have accrued at 

the termination for convenience on March 11, 2014. On that date, Globe’s performance 

of the contract ended, and Globe would have known or should have known all facts 

relevant to a constructive change claim. 

Here, Globe did not submit a valid CDA claim until its TSP II Supplement in 

June 2020. Globe Trailer, 21-1 BCA ¶ 37,795 at 183,499-500. As we noted in our prior 

decision, Globe’s TSP II failed to include a sum certain for its constructive change 

claims and, and thus, was not a valid CDA claim. Id. at 183,499.3

 As noted above, 

Globe’s constructive change claims accrued, at the latest, on March 11, 2014, meaning 

that they accrued more than six years prior to the date of Globe’s claim, and are 

untimely. 41 U.S.C. § 7103(a)(4)(A). 

Globe contends that the cases establishing claim accrual “are inapposite because 

they involve factual backgrounds where constructive change claims are submitted in 

isolation, and none involve instances in which there was a termination for convenience, 

termination settlement proposal, or years of ongoing settlement negotiations, as under our 

facts” (app. resp. at 10). We disagree. As noted above, this appeal involves only Globe’s 

constructive change claim. As the Federal Circuit noted in Electric Boat, “[w]hether 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.” Electric Boat 

Corp. v. Navy, 958 F.3d 1372, 1375 (Fed. Cir. 2020). The fact that Globe was 

simultaneously negotiating a termination settlement proposal did not toll the statute of 

limitations for its constructive change claim. 

We cite the March 11, 2014 date for simplicity; however most, if not all, of 

Globe’s constructive change claims accrued much earlier. For example, Globe’s 

constructive change pertaining to gross vehicle weight likely accrued when the 

 3 As we held in our prior decision, to the extent that Globe included a dollar amount in its 

TSP II, it was a proposal for settlement purposes and not a sum certain for a claim. 

Globe Trailer, 21-1 BCA ¶ 37,795 at 183,499. 
9

contracting officer refused Globe’s requested modification in September 2012 (R4, tab 16 

at G-585) and its constructive change for the provision of an additional test trailer likely 

accrued with the government’s request in May 2012 that Globe provide an additional 

trailer (R4, tab 10). Globe was aware of the deck extensions outside the payload area 

starting with communications in February 2013 (R4, tab 21) and continuing through 

January 2014 (R4, tab 38). Globe’s allegations regarding defective electrical connections 

were known to Globe when it submitted a FACAR in May of 2013 (R4, tab 28) and when 

the government rejected Globe’s proposed solution in September 2013 (R4, tab 31). 

Globe was aware of the trailer shackle issue and discussed the issue in a May 2013

FACAR (R4, tab 26 at G-697), and Globe indicated that it had designed the new shackle 

and tested it that same month (id. at G-697-98). Globe’s quality assurance plan that was 

allegedly beyond the contract requirements was submitted to the government in

June 2013 (R4, tab 50 at G-1087). The additional test service representatives at the 

Aberdeen Test Center and the Yuma Test Center were required, and funded, by a contract 

modification in May 2013 (R4, tab 25). Thus, Globe didn’t miss the statute of limitations 

claim deadline by three months from March 11, 2020 (six years after the termination for 

convenience) to the June 11, 2020 TSP II Supplement. Instead, each of the alleged 

constructive changes has a separate claim accrual date, and many of the claims accrued in 

2012 and 2013.4

Globe asserts that it “was under constant pressure to perform and deliver on 

schedule under the contract during the latter part of 2013 and into the early months of 

2014, and it had no reason at that time to try to gather all of the cost-related data 

necessary to submit a formal claim (app. resp. at 7). Even if Globe was under pressure to 

perform, that did not prevent the accrual of Globe’s claim. 

III. Globe Has Not Established That Equitable Tolling Is Appropriate

Globe asserts that, even if its claim is barred by the CDA statute of limitations, it 

is entitled to equitable tolling (app. resp. at 11-14). The CDA’s statute of limitations is 

not jurisdictional, and is subject to equitable tolling. Sikorsky Aircraft Corp. v. 

United States, 773 F.3d 1315, 1322 (Fed. Cir. 2014). The Board has held that the CDA’s 

six-year statute of limitations “may be equitably tolled when a litigant has (1) been 

pursuing his rights diligently, and (2) some extraordinary circumstance ‘stood in his way 

and prevented timely filing.’” The Adamant Grp. for Contracting and Gen. Trading, 

ASBCA No. 60316, 16-1 BCA ¶ 36,577 at 178,136 (citing Menominee Indian Tribe of 

Wis. v. United States, 577 U.S. 250, 255 (2016)); see also Kamaludin Slyman CSC, 

ASBCA No. 62006 et al., 21-1 BCA ¶ 37,849 at 183,794. Here, Globe asserts that it had 

 4 Additionally, we note that some of the alleged constructive changes appear to have been 

required pursuant to bilateral contract modifications. With the exception of a 

footnote regarding an element of Globe’s weight reduction claim (gov’t mot. at 36 

n.3) the government has not moved for summary judgment on that basis, and we 

make no findings on that basis. 
10

been pursuing its rights diligently, citing to its attempt to assert its constructive change 

claims in its TSP II in June 2017, the fact that the parties jointly requested the Board to 

allow Globe to submit a revised TSP, and Globe’s assertion of the constructive change 

claims in its complaint in ASBCA No. 60979 in July 2017 (app. resp. at 12-13). 

However, even if we assume that this was sufficient to satisfy the first element of the test 

for tolling, it is clear that Globe cannot satisfy the second element, that some 

extraordinary circumstance prevented Globe from filing its claim. Globe contends that 

the government employed “misleading tactics” to extend the parties’ settlement 

negotiations beyond expiration of the statute of limitations (id. at 13). Globe’s 

allegations fail to establish that it was prevented from filing its claim. “[I]n the absence 

of trickery, once a claim has accrued and the statute of limitations begins to run, 

‘subsequent communications between [the contractor] and the government about the 

claim’s merits and magnitude [do] nothing to toll it.’” Ford Lumber & Bldg. Supply, 

Inc., ASBCA No. 61617 et al., 19-1 BCA ¶ 37,407 at 181,847 (quoting Raytheon Missile 

Sys., ASBCA No. 58011, 13 BCA ¶ 35,241 at 173,018). Globe’s allegations of 

“misleading tactics” pertain to the government’s actions in continuing to negotiate with 

Globe; however, Globe does not assert that the government made false statements or 

engaged in “trickery” (app. resp. at 13). Simply put, Globe has not asserted facts 

sufficient to establish that an extraordinary circumstance prevented it from filing its 

claim. Kamaludin Slyman, 21-1 BCA ¶ 37,849 at 183,795. 

Globe additionally alleges that equitable tolling is appropriate because it submitted 

a defective pleading during the statutory period (app. resp. at 11-13 (citing Lodge Const., 

Inc. v. United States, 153 Fed. Cl. 430, 438 (2021)). In Lodge Construction, the Court of 

Federal Claims applied a three element tolling test that provides that tolling is appropriate 

when one of three circumstances exists: “(1) a defective pleading was filed during the 

statutory period; (2) [the claimant] was induced or tricked by [the other party’s] 

misconduct into allowing the filing deadline to pass; or (3) [the claimant’s] injury was 

inherently unknowable.” Id. (quoting Crawley v. United States, 145 Fed. Cl. 446, 452 

(2019)). Decisions of the Court of Federal Claims are not binding on the Board, and we 

hold that a defective filing does not provide a basis for equitable tolling. In Lodge

Construction, the court cites Crawley for the standard for equitable tolling. However, 

Crawley was a suit pursuant to the Fair Labor Standards Act (FLSA) and not a CDA 

case. The Court of Federal Claims’ test for tolling in FLSA cases originated in the 

Supreme Court’s holding in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 90 (1990). 

However, in Menominee Indian Tribe v. United States, 577 U.S. 250, 256, the Supreme 

Court expressly adopted the two element test, originating in Holland v. Florida, 560 U.S. 

631 (2010) in the context of a suit applying the CDA. In addition, we note the FLSA is 

an entirely different statutory scheme with a shorter statute of limitation and jurisdiction 

in Federal District Courts as well as the Court of Federal Claims. Federal courts have the 

ability to transfer incorrectly filed cases to courts of proper jurisdiction. 28 U.S.C. 

§ 1631. There is no statutory corollary in the CDA, which requires a contractor to submit 

a claim to a contracting officer. 
11

IV. The Fact That Discovery Is Not Complete, Without More, Is Not A Valid 

Basis To Suspend Entry Of Summary Judgment 

Globe’s final argument is that the Board should deny the government’s motion as 

premature, and allow the parties additional time to develop the record (app. resp. at 14). 

We recently addressed the legal standard pursuant to Fed. R. Civ. P. 56(d) for a 

non-moving party seeking to oppose summary judgment because it requires additional 

discovery. Odyssey Int’l, Inc., ASBCA Nos. 62062, 62279, 21-1 BCA ¶ 37,902

at 184,070. The non-moving party cannot simply assert that discovery is incomplete, but 

must establish by affidavit or declaration the reason or reasons why it is unable to file an 

affidavit presenting the facts necessary to oppose the motion. Id. In addition, the motion 

must identify the facts not available, the steps the party has taken to obtain these facts, 

and must show how additional time will allow the party to rebut the pending motion (id). 

Even ignoring Globe’s failure to support its request with a declaration, at best 

Globe argues that it needs further discovery regarding the parties’ settlement negotiations 

(app. resp. at 14). As detailed above, the settlement negotiations are not relevant to 

determining when Globe’s constructive change claim accrued, and are not relevant to 

Globe’s equitable tolling argument. Accordingly, we find no basis to delay entry of 

summary judgment in favor of the government. 

CONCLUSION

For the reasons stated above, Globe’s appeal, ASBCA No. 62594 is denied.

Dated: November 16, 2021

(Signatures continued)

DAVID D’ALESSANDRIS

Administrative Judge

Armed Services Board

of Contract Appeals
12

I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur

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. 62594, Appeal of Globe 

Trailer Manufacturing, Inc., rendered in conformance with the Board’s Charter.

Dated: November 16, 2021

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals