The opinion
Case: 10-41296 Document: 00511725216 Page: 1 Date Filed: 01/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 13, 2012
No. 10-41296 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RENDA MARINE, INC.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before BENAVIDES and PRADO, Circuit Judges, and ALVAREZ, District
Judge.*
BENAVIDES, Circuit Judge:
In this case, Renda Marine, Inc. (“Renda”) appeals the district court’s
denial of its motion for partial dismissal for lack of subject matter jurisdiction
and motion for partial summary judgment. Renda also appeals the district
court’s grant of the Government’s motion for judgment on the pleadings. For the
following reasons, we AFFIRM.
*
District Judge of the Southern District of Texas, sitting by designation.
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I. FACTUAL AND PROCEDURAL BACKGROUND
In October 1998, Renda contracted with the Army Corps of Engineers to
dredge a portion of the Houston Ship Channel and to construct containment
levees and other structures at a disposal facility for dredge material. Renda
experienced difficulties with the dredging and construction work, including
allegedly unexpected site conditions that made completion of the work at the
original contract price impossible. Renda submitted its claims for additional
compensation to a contracting officer (“CO”) pursuant to the Contracts Dispute
Act (“CDA”), 41 U.S.C. § 601, et seq.1 The CO issued a unilateral contract
modification in favor of Renda that increased the contract price by $3,083,833.
The Army Corps of Engineers paid Renda this amount. Unsatisfied with the
decision, Renda filed suit in the Court of Federal Claims (“CFC”) to recover an
additional $906,364. The CFC determined that Renda was entitled to neither
the additional $906,364 it sought, nor the equitable adjustment of $3,083,833
made by the CO.
While Renda’s modification suit was pending before the CFC, the CO
issued a final decision on six different claims the Government had brought
against Renda for post-termination costs of completing certain aspects of the
work originally covered by the contract. The CO granted the total amount of
those claims, which was $11,860,016. The CO’s decision also stated that the
Government withheld $259,840.85 in retainage. Renda did not appeal this
decision directly. Rather, on July 1, 2004, Renda sought leave to amend its
complaint in the ongoing CFC litigation to challenge the CO’s decision granting
1
At the time of the district court’s decision, the CDA was codified at 41 U.S.C. §§ 601-
613. On January 4, 2011, the CDA was revised and published as 41 U.S.C. §§ 7101-7109. This
opinion will reference the previous section numbers, in order to remain consistent with the
district court opinion.
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the Government $11,860,016. The CFC denied Renda’s motion and the Federal
Circuit affirmed that denial.
On November 24, 2008 the Government filed the present lawsuit in federal
district court, seeking to enforce the decisions of the CFC. In Count I, the
Government alleges that Renda owes it $11,860,016, pursuant to the CO’s
decision on the six counterclaims. In Count II, the Government seeks repayment
of $3,083,833—the amount paid to Renda in excess of the original contract
price—based on the CFC’s determination that Renda was not entitled to any
equitable adjustment of the contract price.
Renda filed a motion for partial dismissal, arguing that the district court
lacked subject matter jurisdiction over Count II of the complaint because the
Government allegedly failed to comply with the requirements of the CDA.
Renda also filed a motion for partial summary judgment, arguing that the
statute of limitations barred Count I. On September 30, 2010, the district court
denied Renda’s motions, granted the Government’s motion for judgment on the
pleadings on both claims, and entered judgment against Renda. The district
court held that it had jurisdiction to enforce the CFC’s decision that Renda was
not entitled to the $3,083,833 the Government had paid it, and that the
Government had timely filed its suit to enforce the $11,860,016 judgment
against Renda. The district court also held that Renda was not entitled to any
offset of the Government’s recovery based on funds the Government had kept in
retainage. Renda then timely filed this appeal of the district court’s judgment.
II. STANDARD OF REVIEW
A challenge to this court’s subject matter jurisdiction may be raised at any
time on appeal. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Edge
Petroleum Operating Co. v. GPR Holdings, L.L.C. (In re TXNB Internal Case),
483 F.3d 292, 298 n.6 (5th Cir. 2007). When considering a motion to dismiss for
lack of subject matter jurisdiction, a district court may consider: “(1) the
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complaint alone; (2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Rodriguez v. Christus Spohn Health Sys.
Corp., 628 F.3d 731, 734 (5th Cir. 2010) (quoting Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001)). The party asserting jurisdiction has the burden
of proof. Ramming, 281 F.3d at 161.
We review de novo a district court’s grant of judgment on the pleadings
under Federal Rule of Civil Procedure 12(c). Brittan Communs. Int’l Corp. v.
Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002). “[W]e must look only to the
pleadings and accept all allegations contained therein as true.” Id. “The issue
is not whether the plaintiffs will ultimately prevail, but whether they are
entitled to offer evidence to support their claims.” Ferrer v. Chevron Corp., 484
F.3d 776, 780 (5th Cir. 2007).
We also apply a de novo standard of review to a motion to dismiss under
Rule 12(b)(1), and motions for summary judgment under Rule 56. LeClerc v.
Webb, 419 F.3d 405, 413 (5th Cir. 2005). Summary judgment is appropriate if
the moving party can show that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). “A factual dispute is ‘genuine’ where a reasonable party would return a
verdict for the non-moving party.” Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273,
282 (5th Cir. 2003) (citation omitted). In considering a summary judgment
motion, we view the evidence in the light most favorable to the non-moving
party. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir.
2006). However, “[u]nsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary
judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
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III. ANALYSIS
A. The Contract Disputes Act
“The Contract Disputes Act is a comprehensive statutory scheme for
resolving contractual conflicts between the United States and government
contractors.” United States v. J&E Salvage Co., 55 F.3d 985, 987 (4th Cir. 1995);
Menominee Indian Tribe v. United States, 614 F.3d 519, 521 (D.C. Cir. 2010)
(accord); Anselma Crossing, L.P. v. United States Postal Serv., 637 F.3d 238, 246
(3d Cir. 2011) (stating that “the policy goals of the CDA [are] to collect contract
disputes against the government in a forum . . . with both the requisite expertise
and the ability to provide consistency in applying the laws related to government
contracts”). The CDA applies to any express or implied contract entered into by
an executive agency for: “(1) the procurement of property, other than real
property in being; (2) the procurement of services; (3) the procurement of
construction, alteration, repair or maintenance of real property; or, (4) the
disposal of personal property.” 41 U.S.C. § 602(a). “It is well-established
therefore that disguised contract actions may not escape the CDA.” J&E
Salvage Co., 55 F.3d at 988 (noting that the source of the rights the government
sought to vindicate were based in contract, even though the government styled
its action as one sounding in tort); Trevino v. Gen. Dynamics Corp, 865 F.2d
1474, 1489 (5th Cir. 1989) (finding claim subject to CDA, as essence of claim was
to obtain money from the government).
The CDA was intended “to streamline the settlement of controversies over
federal government contracts,” and it “generally affords private contractors a
two-step review process.” Bethlehem Steel Corp. v. Avondale Shipyards, Inc.,
951 F.2d 92, 93 (5th Cir. 1992). First, there must be a final decision by a CO on
a claim before that claim can be submitted to a federal court. Trevino, 865 F.2d
at 1489 (“The decision, or failure to decide, by a contracting officer is an absolute
jurisdictional prerequisite to filing a suit under the Contract Disputes Act.”); see
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also, e.g., J&E Salvage Co., 55 F.3d at 987; Menominee Indian Tribe, 614 F.3d
at 521; Sharman Co. v. United States, 2 F.3d 1564, 1566 (Fed. Cir. 1993),
overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir.
1995) (en banc)2; Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works v.
United States, 28 Fed. Cl. 418, 422 (1993). After a CO has issued a decision, a
party may appeal that decision to the relevant board of contract appeals within
90 days, or file suit in the CFC within 12 months. Menominee Indian Tribe, 614
F.3d at 521.
A claim has been defined as “the assertion as a matter of right to a sum
certain as presently due and owing, on which there was a final decision by the
contracting officer.” Sharman Co., 2 F.3d at 1567; see also Joseph Morton Co. v.
United States, 757 F.2d 1273, 1281 (Fed. Cir. 1985) (stating that the word
“claim” does not mean “the whole case between the contractor and the
Government,” but instead, it means “each claim under the CDA for money that
is one part of a divisible case.”); United States v. Intrados/Int’l Mgmt. Grp., 277
F. Supp. 2d 55, 64 (D.D.C. 2003) (“A valid claim submitted to a contracting
officer includes such routine submissions as ‘vouchers, invoices, and similar
requests for payment[, which] are submitted for work done or equipment
delivered by the contractor in accordance with the expected or scheduled
progression of contract performance.’” (quoting James M. Ellett Constr. Co., Inc.
v. United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996) (internal quotation marks
and citation omitted))). The Federal Acquisitions Regulation (“FAR”)3 defines
a “claim” as “a written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain, the
2
The Federal Circuit Court of Appeals has exclusive jurisdiction over appeals from
agency boards of contract appeals in CDA cases, and from the CFC. 28 U.S.C. § 1295(3), (10).
3
“The Federal Acquisitions Regulation applies to all acquisitions as defined in part 2
of the FAR, except where expressly excluded.” 48 C.F.R. § 1.104.
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adjustment or interpretation of contract terms, or other relief arising under or
relating to the contract.” 48 C.F.R. § 2.101; see also In re Remington Rand Corp.,
836 F.2d 825, 830 (3d Cir. 1988) (citing FAR definition).
B. Count I
In Count I, the Government seeks to collect the $11,860,016 that the CO
determined Renda owed for the post-termination costs of completing work
originally covered by the contract. In the district court, Renda argued that the
suit was filed after the statute of limitations had run. Section 2415 of Title 28
of the United States Code provides alternative limitations periods for
government contract actions for money damages. The Government must file suit
either “within six years after the right of action accrues or within one year after
final decisions have been rendered in applicable administrative proceedings
required by contract or by law, whichever is later.” 28 U.S.C. § 2415(a).
In finding for the Government, the district court considered both
alternative statute of limitations periods. Although noting that a contract claim
generally accrues at the time of breach, the district court agreed with the
Government’s argument that it was not suing for breach of contract, but rather
to enforce the CO’s final decision issued on November 26, 2002. Therefore,
under the six-year limitations period, the Government’s suit, filed on November
24, 2008, appeared timely. However, the district court ultimately relied on the
one-year savings clause after finding that it provided the Government with the
most time to file suit. The district court held that an appeal to the CFC
constituted an applicable administrative proceeding triggering the savings
clause. The court noted that it would not have had jurisdiction to consider the
Government’s claims against Renda until the Federal Circuit had affirmed the
CFC’s denial of Renda’s motion to amend its complaint in the separate, ongoing
CFC litigation regarding the $3,083,833 the Government had overpaid Renda.
The Government could not enforce the CO’s decision until it was clear that
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Renda was barred from challenging it. The Federal Circuit’s decision affirming
the CFC’s denial of Renda’s leave to amend its complaint was rendered on
December 11, 2007. Therefore, according to the district court, the Government’s
suit was timely.
Here, Renda again argues that the statute of limitations had run on the
Government’s ability to collect the $11,860,016, because the Government had to
file its claim within six years of Renda’s breach of contract. In addition, Renda
argues that the applicable administrative proceedings came to an end on
November 26, 2003, when the one-year time period within which Renda could
appeal the CO’s decision elapsed. Because Renda did not timely appeal, it
argues that the CO’s decision became “final and conclusive and not subject to
review by any forum, tribunal, or Government agency” one year after the
decision issued. 41 U.S.C. §§ 605(b), 609(a). According to Renda, its efforts to
collaterally attack the CO’s decision by amending its complaint in separate CFC
litigation cannot constitute “administrative proceedings required by contract or
law.” 28 U.S.C. § 2415(a) (emphasis added). The Government responds that the
claim it seeks to enforce is not the contract claim, but the CO’s decision. Thus,
the six-year statute of limitations began to run when the CO issued that
decision, not when Renda breached the contract, because the right to sue did not
accrue until the CO had determined that Renda owed the Government
$11,860,016. Alternatively, the Government contends that Renda’s Court of
Federal Claims and Federal Circuit litigation constitute applicable
administrative proceedings because Renda was attempting to undo the CO’s
decision during those proceedings.
Renda is correct that, traditionally, a contract claim accrues when the
contract is breached. See FDIC v. Belli, 981 F.2d 838, 840 (5th Cir. 1993)
(stating that “the ordinary usage of the term ‘accrues’ is that a cause of action
‘accrues’ when ‘it comes into existence’” (citation omitted)); Phillips Petroleum
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Co. v. Lujan, 4 F.3d 858, 861 (10th Cir. 1993) (holding that the government’s
right of action accrued on the date of breach); United States v. Kass, 740 F.2d
1493, 1497 (11th Cir. 1984) (same); see also 48 C.F.R. § 33.201 (“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.”). However, we agree with the district court that it
makes little sense to hold that the Government’s cause of action for Renda’s
breach of contract and separate cause of action to enforce a decision regarding
that breach accrued on the same date. The only appellate court to deal with a
case on-point came to the same conclusion. In United States v. Suntip, the Ninth
Circuit held that the statute of limitations did not bar a suit to enforce a CO’s
decision because the right of action did not accrue until the CO issued its
decision on the contract claim. 82 F.3d 1468, 1475 (9th Cir. 1996).
Distinguishing between a claim on the contract and an action to enforce a CO’s
decision, the court noted that “the government’s present suit is similar to a suit
on a judgment,” id. at 1474, and depended “upon its contracting officers’
decisions being final, conclusive, and not subject to further challenge on the
merits,” id. at 1475. Because “the government cannot take legal action on its
claim until it first makes it the subject of a decision by a contracting officer[,] .
. . . [t]ime cannot run against the government until it is procedurally possible for
it to sue.” Id. at 1476 (internal quotation marks and citations omitted); see also
United States v. Kasler Elec. Co., 123 F.3d 341, 344 (6th Cir. 1997) (citing Suntip
and noting that “the government merely sought summary enforcement of an
order that it contends is final and unreviewable”). Therefore, because the
Government filed suit within six years of the CO’s decision that Renda owed the
Government $11,860,016, its suit was timely.
Our reading of the statute of limitations in 28 U.S.C. § 2415(a) (and that
of the Ninth Circuit) is admittedly imperfect. If the Government has six years
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from a CO’s decision to file a suit to enforce it, then the savings clause serves no
purpose in a situation such as this one. This is because the CO’s decision
becomes final one year after it is rendered if it is not timely appealed, such that
the savings clause, which allows the Government one year from a final decision
in an applicable administrative proceeding to file suit, saves nothing where the
Government already has six years from the date of the decision to file. See
United States v. Am. States Ins. Co., 252 F.3d 1268, 1273 (11th Cir. 2001)
(“Allowing the Government six years from a final decision in which to sue would
render this one-year provision meaningless.”). Even in situations where a party
appeals the CO’s decision, it is unlikely that it will routinely take the CFC longer
than six years from the date of that decision (rather than the date of breach) to
rule on the appeal. For instance, in the separate action that forms the basis for
Count II of this suit, the CFC issued its decision on July 28, 2005–slightly more
than four years after the contract modification issued by the CO on March 14,
2001. See Renda Marine, Inc. v. United States, 66 Fed.Cl. 639 (Fed. Cl. 2005).
While a further appeal to the Federal Circuit could conceivably draw the dispute
out beyond six years, it is not likely that an appeal to an Article III court
constitutes an “applicable administrative proceedin[g].” § 2415(a). See S.Rep.
No. 89–1328, at 2504 (1966) (stating that the savings clause was necessary
because “[a]n administrative proceeding ordinarily consumes a considerable
period of time) (emphasis added); Suntip, 82 F.3d at 1476-77 (finding that an
action in the Court of Federal Claims is an “administrative proceeding,” in part
because the Federal Courts Improvement Act of 1982 changed the CFC from an
Article III to an Article I court). Nevertheless, Congress chose the language in
§ 2415(a), allowing the Government to file suit “within six years after the right
of action accrues or within one year after final decisions have been rendered in
applicable administrative proceedings required by contract or by law, whichever
is later,” and there may be cases in which related administrative proceedings
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stretch out beyond six years from a CO’s decision. Furthermore,
notwithstanding the identified difficulties with the statute, Congress provided
six years for the Government to bring a claim. The Government cannot seek to
enforce a CO’s decision until that decision has been rendered, nor do the federal
courts have jurisdiction until that time. Thus, this suit clearly falls within the
statute of limitations.
While we ultimately agree with the district court’s holding that the
Government’s suit was timely, we do not agree that administrative proceedings
relating to Count I terminated when the Federal Circuit affirmed the CFC’s
denial of Renda’s motion to amend its complaint in the separate, ongoing
litigation. Such a collateral attack by Renda was not “required by law,”
§ 2415(a), and the CO’s decision became final and enforceable one year after its
issuance, when Renda failed to timely appeal. Consequently, the savings clause
would have granted the Government only one year from that date to file suit, or
until November 26, 2004. Furthermore, the district court found that the
Government’s suit was timely because it was filed within one year of the Federal
Circuit’s ruling, but as discussed above, we are not convinced that an appeal to
the Federal Circuit constitutes “an applicable administrative proceedin[g].” Id.
Consequently, we hold that the Government’s suit to collect the $11,860,016
owed by Renda was timely because it was filed within six years of the CO’s
decision, rendered on November 26, 2002.
C. Renda’s Set-Off Claim
Renda argues that even if Count I is not barred by the statute of
limitations, the Government’s recovery should be reduced by $259,840.85, an
amount Renda claims the Corps withheld as a set-off from amounts earned by
and owed to Renda. The district court rightly noted that offset is an affirmative
defense, Giles v. Gen. Elec. Co., 245 F.3d 474, 494 n.36 (5th Cir. 2001), such that
it is Renda’s burden to “establish beyond peradventure all of the essential
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elements of the defense,” Addicks Serv., Inc. v. GGP-Bridgeland, LP, 596 F.3d
286, 293 (5th Cir. 2010) (emphasis original) (quotation marks and citations
omitted). According to the district court, the CO’s decision letter stated that the
$259,840.85 was an amount remaining in retainage, and “[n]othing in the
contracting officer’s decision letter indicates that this amount is intended to
offset the amounts claimed in the Corps’ $11,860,016.00 counterclaim.”
Therefore, in order to consider Renda’s claim, the district court would have had
to revisit the merits of the CO’s decision, which it did not have jurisdiction to do.
See Kasler, 123 F.3d at 344 (stating that appeal to an agency board or the CFC
are the only options for challenging a CO’s decision, and “the merits of the
contracting officer’s decision itself were not within the jurisdiction of the district
court”).
We agree with the district court that the CO’s decision letter does not
expressly state that the $259,840.85 the Government kept in retainage was
intended to offset the $11,860,016 that Renda owed the Government. The letter
mentions the retainage in the section on liquidated damages. It states that “the
Government is withholding approximately $259,840.85 in retainage,” and in the
following sentence says that it is also “withholding $236,016.00 in liquidated
damages.” Those liquidated damages are then calculated into the $11,860,016
total that Renda owes. While the retainage and damages related to the claim
are discussed together, the CO never clarifies whether the retainage should be
applied to the total owed by Renda. Thus, as the district court held, it is not
obvious from the letter whether the retainage was an offset, and any effort to
make that determination would require a revisitation of the merits of the CO’s
decision. Renda did not appeal that decision, and cannot now collaterally attack
it through this federal suit. Therefore, because Renda has failed to prove its set-
off claim “beyond peradventure,” we affirm the district court’s denial of its
motion for partial summary judgment on this claim.
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D. Count II
In Count II, the Government seeks to enforce the CFC’s decision that the
Government overpaid Renda $3,083,833. Renda argues that the district court
lacked subject matter jurisdiction over Count II because the Government never
made an affirmative claim to the CO for repayment of the $3,083,833, nor did
the Government make a counterclaim for that amount in the CFC. Because only
Renda’s claim for additional compensation was at issue in the CFC, and the CO
did not issue a written decision awarding any amount to the Government, Renda
argues that the district court lacked jurisdiction over the Government’s suit.
The district court rejected Renda’s argument that the Government had to
file its own administrative claim to recover the $3,083,833. As the district court
noted, the CDA requires that “[a]ll claims by a contractor against the
government related to a contract shall be in writing and shall be submitted to
the contracting officer for a decision[;] [a]ll claims by the government against a
contractor relating to a contract shall be the subject of a decision by the
contracting officer.” 41 U.S.C. § 605(a). Thus, the language of the statute
differentiates between the two parties, requiring that a contractor submit any
claim to the CO, while a claim by the government must only be the subject of a
CO’s decision. The district court therefore ruled that the Government did not
need to file a separate claim to recover the money it had already paid Renda,
because the Government’s claim for repayment had been “the subject of a
decision by the contracting officer.” Accordingly, no further action was required
on the Government’s part.
In United States v. T & W Edmier Corp., 465 F.3d 764 (7th Cir. 2006),
cited by the district court in support of its decision, the Seventh Circuit held that
the CDA “does not require the United States to file an administrative claim in
any situation, as far as we can make out,” including “in order to recover an
overpayment that ensues from a decision by the Board that the United States
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owes less than the contracting officer awarded.”4 Id. at 766. Instead, the
Seventh Circuit found that “[w]hat is required when the government seeks a
payment from the contractor is not an independent claim, but a decision .” Id.
The court in Edmier ruled that “the Contract Disputes Act allows the appellate
board to make an independent decision and decrease as well as increase the
award” granted by a CO. Id. Because a dispute over a CO’s decision thus
receives “full administrative consideration,” the Seventh Circuit held that “there
is no reason to rerun the process before the United States may collect any net
balance in its favor.” Id. But cf. Wilner v. United States, 26 Cl. Ct. 260, 279
(1992) (finding that the CDA “requires such a written claim by the Government
as a prerequisite to the Government’s assertion of a claim for affirmative relief
[seeking repayment of sums already paid]”), vacated on other grounds and
remanded, 24 F.3d 1397 (Fed. Cir. 1994).5 Other courts have similarly endorsed
the CFC’s ability to either increase or decrease the appealed CO’s award. See
Assurance Co. v. United States, 813 F.2d 1202, 1206 (Fed. Cir. 1987) (“We must
conclude from the face of the Disputes Act that a contract appeals board can,
with respect to a contracting officer’s decision that has been appealed to it,
reduce as well as increase the award made by that contracting officer.”);
Transamerica Ins. Corp., 28 Fed. Cl. at 422 (“Furthermore, on appeal ‘the
contracting officer’s award is not to be treated as if it were the unappealed
4
Edmier involved an appeal to the Armed Services Board of Contract Appeals. The
CDA authorizes appeals of a CO’s decision to either an agency board, or to the Court of Federal
Claims. See 41 U.S.C. § 606(a)-(b). The CDA treats such appeals equally, and subjects them
to the same requirements.
5
The district court distinguished Wilner on the basis that “the court determined the
sums sought by the government were the result of unilateral modifications, not the contracting
officer’s subsequent final decision that had been appealed,” while “the CFC considered Renda’s
Flare Area claim (the modification and claim for additional relief) as a unitary claim, not
separate decisions by the contracting officer.” We agree that Wilner presented a situation
different than that here, where the CO’s entire decision is at issue.
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determination of a lower tribunal which is owed special deference on appeal . . .
[and a reviewing factfinder may] reduce as well as increase the award made by
the contracting officer . . . .’” (quoting Assurance Co., 813 F.2d at 1206)).
Here, Renda initiated its claim for $4,691,688, and that claim was subject
to a decision by a CO. When Renda filed suit in the CFC seeking additional
money, the CFC considered the entire amount awarded pursuant to the
modification, and ultimately determined that Renda was entitled to less than the
CO had granted. We agree with the CFC’s determination that Renda’s appeal
put its entire award at issue. Furthermore, we find that the district court’s
reading of the statute, mirroring the Seventh Circuit’s interpretation in Edmier,
is in keeping with one of the policies animating the CDA: efficiency. See S.Rep.
No. 95-1118, at 3 (stating that “the complexity of government procurement
demands the enactment of a more efficient procedure”). It would be wholly
inefficient to require the Government to submit a separate claim to a CO for
repayment of a sum to which the CFC and Federal Circuit have already ruled
the Government is entitled, especially since the CO would be bound by those
decisions.
Consequently, we hold that the district court had subject matter
jurisdiction over the Government’s claim for repayment of the $3,083,833 it had
overpaid Renda, and the district court properly granted judgment in the
Government’s favor on that claim.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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