# MOTION FOR PARTIAL DISMISSAL DENIED:

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

MOTION FOR PARTIAL DISMISSAL DENIED:
May 12, 2015

CBCA 4068

SYSTEMS MANAGEMENT AND RESEARCH
TECHNOLOGIES CORPORATION,
Appellant,
v.
DEPARTMENT OF ENERGY,
Respondent.
Lorenzo F. Exposito, Washington, DC, counsel for Appellant.
James J. Jurich and Charmaine A. Howson, Office of General Counsel, Department
of Energy, Washington, DC, counsel for Respondent.
Before Board Judges DANIELS (Chairman), KULLBERG, and LESTER.
LESTER, Board Judge.
Respondent, the Department of Energy (DOE), has filed a motion to dismiss, as
time-barred, a portion of the claim that appellant, Systems Management and Research
Technologies Corporation (SMARTECH), submitted to the contracting officer in March
2014. In its claim, SMARTECH seeks payment of $788,303.29, most of which relates to
unpaid fixed fees to which it asserts it is entitled under its contract. DOE asserts that,
because services under the contract were performed on an annual or bi-annual basis between
2004 and 2008 and because the fixed fees were tied to each year’s or half-year’s contract
work, SMARTECH’s 2014 claim for fixed fees earned from 2004 through 2007 was

CBCA 4068

2

untimely because it was not submitted within six years of the date upon which the fees claim
accrued, as required by the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)(4)(A) (2012).
For the reasons set forth below, we deny the motion.
Background
The following factual allegations are taken from SMARTECH’s complaint,
supplemented with information from the contract to which SMARTECH repeatedly cites in
its complaint.
On September 30, 2003, DOE awarded SMARTECH an undefinitized time-andmaterials (T&M) letter contract, no. DE-AC01-03S020138, for technical support in the
review of classified and unclassified-but-sensitive documents for the Office of Classified and
Controlled Information Review. Complaint ¶¶ 1, 7, 17. The contract was definitized by the
parties on March 17, 2005 (after SMARTECH had already begun performance of the first
base year of the contract), pursuant to modification no. A006. Id. ¶ 7. Consistent with the
nature of a T&M contract, DOE was to issue specific work/task orders, or “task
assignments,” to SMARTECH during the contract period identifying the specific tasks that
SMARTECH was to accomplish and for which it would be paid at an hourly labor rate.
Exhibit 8 at 13, 32 (contract clauses C.4.0 and H.8);1 see 48 CFR 16.601(b) (2014)
(discussing T&M contracts).
As definitized, the contract had a base period of twenty-four months, plus four option
periods totaling an additional thirty-six months. As set forth in modification no. A006,
option periods one and two were for six months each, and option periods three and four were
each for twelve months. Complaint ¶ 8.
SMARTECH alleges that, “[u]nlike a typical T&M contract, which would call for the
capture of ‘fee’ as part of the burdened hourly rates, the Contract set out fixed and partially
burdened hourly rates for direct labor and separate and stand-alone ‘fixed fee’ terms by
contract/option period.” Complaint ¶ 9. Specifically, the contract, as definitized and
subsequently modified, set out a “Fixed Fee” in the first base year of $368,153 (a period
running from September 30, 2003, to September 29, 2004);2 in the second base year of

1

All exhibits referenced in this decision are found in the appeal file, unless otherwise
noted, and are cited in SMARTECH’s complaint.
2

SMARTECH has represented that, because the contract was definitized after
SMARTECH had completed the first base year of work, there is no unpaid fee issue in this

CBCA 4068

3

$718,779 (running from September 30, 2004, to September 29, 2005); in option period one
of $231,596 (running from September 30, 2005, to March 29, 2006); in option period two
of $231,596 (March 30, 2006, to September 30, 2006); in option period three of $366,019
(October 1, 2006, to September 30, 2007); and in option period four of $367,422 (October 1,
2007, to September 29, 2008). Id. ¶¶ 12, 29. SMARTECH alleges that the “Fixed Fee”
provisions “were not in any way qualified and were clearly independent from the otherwise
burdened hourly labor rates and other elements of contractor compensation.” Id. ¶ 13. It
asserts that its entitlement to a stand-alone “fixed fee,” in addition to payment for direct costs
charged at hourly rates, is “consistent with DOE’s intent as expressed in its [Request for
Proposals],” in which DOE is alleged to have stated that “[a] single, fixed rate, fixed fee,
level of effort, task assignment, term type contract, with performance incentives is
contemplated,” but with DOE “reserv[ing] the right to award any type of contract deemed
appropriate.” Id. ¶ 10 (citing Exhibit 1 at 1). SMARTECH cites to the “Fixed Fee” clause
incorporated by reference into its contract from Federal Acquisition Regulation (FAR)
52.216-8 (Mar 1997), which provides that “[t]he Government shall pay the contractor the
fixed fee specified in the Schedule.” Id. ¶ 14 (quoting 48 CFR 52.216-8 (2003)).
The contract also incorporated by reference the contract clause at FAR 52.232-7,
“Payment under Time-and-Materials and Labor Hour Contracts (Feb 2002),” see Exhibit 8
at 47, which provided that “[t]he Government will pay the Contractor as follows upon the
submission of invoices or vouchers approved by the Contracting Officer:” (a) the hourly rate
for direct labor, including “wages, indirect costs, general and administrative expenses and
profit,” and (b) “the total cost to the Government for the performance of this contract.” 48
CFR 52.232-7. Clause H.14, titled “Payment (Jul 1991),” provided that the Government
would make payments pursuant to the clause at FAR 52.232-7.
The contract’s billing instructions, set forth in clause G.2, outlined the procedure by
which SMARTECH was to submit invoices under the payment provisions of the contract.
Complaint ¶ 22; Exhibit 8 at 26-27. Those billing instructions did not explicitly identify a
deadline by which SMARTECH was to submit invoices. Complaint ¶¶ 22, 26. SMARTECH
invoiced DOE using a DOE-provided sample form, which SMARTECH alleges DOE
instructed it to follow. Id. ¶ 22. The sample invoice form called for the invoicing of fee
amounts at a percentage of the costs charged through each invoice, rather than at the full
amount of the fee. Id. SMARTECH alleges that, in reliance on the DOE-supplied form, it
did not contemporaneously invoice all of the fixed fee amounts due under the contract. Id.

appeal relating to the first base year. Complaint ¶ 23.

CBCA 4068

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SMARTECH further alleges that “neither the Contract nor the invoicing instructions
provided by DOE required that any remaining fee would or should be invoiced by contract
year.” Complaint ¶ 26. Instead, the DOE billing instructions suggested that any portions of
the fixed fees not previously billed “could appropriately be invoiced as part of a final voucher
‘upon completion, termination, or expiration’ of the Contract.” Id. (quoting Exhibit 72 at
10). SMARTECH alleges that, pursuant to clause H.9(a) of the contract, the “term” of the
contract was “defined as the total contract period, including all exercised options.” Id. ¶ 20
(quoting Exhibit 8 at 33) (emphasis in appellant’s complaint). It asserts that it performed
work under the contract “from the onset of performance [in 2003] until March 31, 2008.”
Id. ¶ 21.
On March 6, 2008, DOE advised SMARTECH by letter that it had awarded a new
contract for document review services to another entity, that DOE did not expect to issue
further work to SMARTECH, and that SMARTECH should take all necessary steps to
complete phase-out of the contract by March 31, 2008. Complaint ¶ 32. Nevertheless,
although DOE did not subsequently assign SMARTECH any additional tasks under the
contract, DOE never terminated it, and the contract expired by its own terms on
September 29, 2008. Id. ¶¶ 39, 40.
Two years later, on September 29, 2010, SMARTECH submitted a request for
equitable adjustment (REA) in the amount of $1,268,270.74, which accompanied
SMARTECH’s final release. Complaint ¶ 41. In that REA, SMARTECH, for the first time,
sought payment of the unpaid portions of its fixed fees under the contract. Id. ¶ 42. On
May 18, 2011, the contracting officer for the first time indicated that DOE would not pay the
remaining unpaid fixed fees. Id. ¶ 43.
On March 28, 2014, SMARTECH submitted a certified claim for $788,303.29
alleging entitlement to additional payment under the contract as follows: (1) unpaid fixed
fees totaling $722,236.79; (2) reimbursement for private office space in the amount of
$8436.61; (3) interest on unpaid fixed fees of $54,602.94; and (4) interest on withheld
retainage of $3026.95.
On May 22, 2014, the contracting officer issued a decision denying SMARTECH’s
claim in its entirety, a decision that SMARTECH appealed to this Board. In its answer to
SMARTECH’s complaint, DOE asserted the CDA six-year statute of limitations as an
affirmative defense. DOE’s motion to dismiss SMARTECH’s claim for fixed fees for all
years other than option year four is now pending.

CBCA 4068

5
Discussion

I.

The Post-Sikorsky Standard of Review

The CDA provides that “[e]ach claim by a contractor against the Federal Government
relating to a contract . . . shall be submitted within 6 years after the accrual of the claim.” 41
U.S.C. § 7103(a)(4)(A); see 48 CFR 33.206(a) (implementing CDA limitations period).
Although Congress enacted the CDA in 1978, it did not add this six-year limitations period
for submitting a claim until 1994, when it enacted the Federal Acquisition Streamlining Act
(FASA). “Prior to 1994, no statute of limitations applied to the presentment of claims to the
contracting officer.” Arctic Slope Native Association, Ltd. v. Sebelius, 699 F.3d 1289, 1295
(Fed. Cir. 2012).
Applying its long-standing view of the CDA as “a statute waiving sovereign
immunity, which must be strictly construed,” Cosmic Construction Co. v. United States, 697
F.2d 1389, 1390 (Fed. Cir. 1982), the Court of Appeals for the Federal Circuit originally
interpreted this six-year limitations period to be jurisdictional. See, e.g., Systems
Development Corp. v. McHugh, 658 F.3d 1341, 1345 (Fed. Cir. 2011); Arctic Slope Native
Association, Ltd. v. Sebelius, 583 F.3d 785, 792-93 (Fed. Cir. 2009). Accordingly, as it
would with any jurisdictional question, a tribunal faced with a challenge to the timeliness of
a contractor’s CDA claim submission would have to accept as true any undisputed
allegations of fact made by the non-moving party, but could consider relevant evidence to
resolve any disputes over jurisdictional facts. Reynolds v. Army & Air Force Exchange
Service, 846 F.2d 746, 747 (Fed. Cir. 1988). Ultimately, the party seeking to invoke the
tribunal’s jurisdiction would have to establish by a preponderance of the evidence the factual
predicate for jurisdiction. Id. at 748; CB&I Federal Services LLC v. Department of
Homeland Security, CBCA 3112, et al., 14-1 BCA ¶ 35,550, at 174,209.
The Federal Circuit recently changed this framework in Sikorsky Aircraft Corp. v.
United States, 773 F.3d 1315 (Fed. Cir. 2014), after holding that the Supreme Court, in
Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817 (2013), had effectively
overruled the Federal Circuit’s prior decisions as to the jurisdictional nature of the CDA’s
six-year limitations period. Sikorsky, 773 F.3d at 1320-21. Reconsidering the jurisdictional
issue in light of Auburn Regional, the Federal Circuit determined that “§ 7103 ‘does not
speak in jurisdictional terms’ or refer in any way to . . . jurisdiction,” id. at 1321 (quoting
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)), and does “not suggest, much
less provide clear evidence, that the provision was meant to carry jurisdictional
consequences.” Id. (quoting Henderson v. Shinseki, 562 U.S. 428 (2011)). It therefore
“conclude[d] that § 7103 is not jurisdictional.” Id. at 1322.

CBCA 4068

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Although “prior decisions of a panel of the [Federal Circuit] are binding precedent on
subsequent panels unless and until overturned in banc,” Newell Cos. v. Kenney
Manufacturing Co., 864 F.2d 757, 765 (Fed. Cir. 1988), “[i]t is established that a later panel
can recognize that the court’s earlier decision has been implicitly overruled as inconsistent
with intervening Supreme Court authority.” Troy v. Samson Manufacturing Corp., 758 F.3d
1322, 1326 (Fed. Cir. 2014). Given the Sikorsky panel’s finding that the Supreme Court had
“effectively overruled” the Federal Circuit’s prior decisions finding the CDA limitations
period to be jurisdictional, Sikorsky, 773 F.3d at 1320-21, the Sikorsky panel’s decision is
plainly binding upon us. See Combat Support Associates, ASBCA 58945, slip op. at 1-2
(Mar. 16, 2015) (vacating prior jurisdictional dismissal order in light of Sikorsky).3
The transformation of the CDA’s six-year statute of limitations from jurisdictional to
non-jurisdictional changes how we must approach a motion to dismiss a case for failure to
meet that deadline. No longer can the Government, through a motion to dismiss, challenge
the factual allegations that the contractor has made in its complaint and require the contractor
to prove jurisdictional facts by a preponderance of the evidence. Instead, the CDA’s six-year
statute of limitations is now an affirmative defense that the Government must plead in its
answer to the appellant’s complaint. See Fed. R. Civ. P. 8(c)(1) (identifying “statute of
limitations” as affirmative defense); CBCA Rule 6(c), 48 CFR 6101.6(c) (requiring
respondent to plead affirmative defenses in answer). “[F]ailure to plead an affirmative
defense . . . in a timely fashion generally results in the waiver of that defense.” Rock Creek
Associates K Limited Partnership v. General Services Administration, GSBCA 11333, 93-1

3

After Sikorsky, the Supreme Court issued another decision, United States v. Wong,
Nos. 13-1074, et al., 2015 WL 1808750 (U.S. Apr. 22, 2015), in which it expanded upon the
ruling that the panel in Sikorsky cited. The Supreme Court, in deciding that the statute of
limitations in the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is non-jurisdictional, held
that “the Government must clear a high bar to establish that a statute of limitations is
jurisdictional.” Wong, 2015 WL 1808750, at *5. Consistent with the Federal Circuit’s
discussion in Sikorsky, the Supreme Court stated that, “[i]n recent years, we have repeatedly
held that procedural rules, including time bars, cabin a court’s power only if Congress has
‘clearly state[d]’ as much.” Id. (quoting Auburn Regional, 133 S. Ct. at 824 (quoting
Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006))). “[A]bsent such a clear statement,” the
Supreme Court held, “‘courts should treat the restriction as nonjurisdictional.’” Id. (quoting
Auburn Regional, 133 S. Ct. at 824 (quoting Arbaugh, 546 U.S. at 516)). “[W]e have made
plain,” the Court indicated, “that most time bars are nonjurisdictional.” Id. To the extent that
the Sikorsky panel’s reliance upon Auburn Regional as the basis for overturning the prior
panel decisions in Systems Development and Arctic Slope raised any concerns, the Wong
decision provides no basis for questioning the result in Sikorsky.

CBCA 4068

7

BCA ¶ 25,351, at 126,271 (1992). In addition, the burden is on the Government, not the
appellant, to prove its affirmative defense that the contractor’s claim is time-barred. See
Shell Oil Co. v. United States, 751 F.3d 1282, 1297 (Fed. Cir. 2014) (“defendant has the
burden of pleading and proving any affirmative defense that legally excuses performance”);
Lynchval Systems Worldwide, Inc. v. Pension Benefit Guaranty Corp., CBCA 3466, 14-1
BCA ¶ 35,792, at 175,068 (party asserting affirmative defense bears burden of proving it).
Further, because the statute of limitations issue is no longer jurisdictional, the party seeking
to enforce the limitations period must do so using the same procedural rules that the Board
applies to other non-jurisdictional issues: motions for failure to state a claim, summary relief
procedures, and, if there are genuine issues of material fact relating to the statute of
limitations issue, a hearing or record submission to resolve competing versions of the facts.
Here, the agency seeks to dismiss SMARTECH’s appeal for failure to state a claim.
In considering any such motion, “we must assume all well-pled factual allegations are true
and indulge in all reasonable inferences in favor of the nonmovant.” Kiewit-Turner, a Joint
Venture v. Department of Veterans Affairs, CBCA 3450, 14-1 BCA ¶ 35,705, at 174,847
(quoting Anaheim Gardens v. United States, 444 F.3d 1309, 1314-15 (Fed. Cir. 2006)
(quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991))). “If the
allegations” in the complaint “show that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for failure to state a claim.” Jones v. Bock,
549 U.S. 199, 215 (2007). Nevertheless, “[d]ismissal for failure to state a claim should not
be granted unless it appears beyond doubt that the appellant cannot prove any set of facts in
support of its claim that would entitle it to relief.” Kiewit-Turner, 14-1 BCA at 174,847
(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The Federal Circuit has recognized (in considering another non-jurisdictional statute
of limitations) that “plaintiff[s] [are] not required to negate an affirmative defense in [their]
complaint.” ABB Turbo Systems AG v. Turbousa, Inc., 774 F.3d 979, 985 (Fed. Cir. 2014)
(quoting La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845-46 (11th Cir. 2004)
(brackets in original)); see 5B Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1357, at 708-10 (3d ed. 2004) (“the complaint is also subject to dismissal under
Rule 12(b)(6) when its allegations indicate the existence of an affirmative defense that will
bar the award of any remedy, but for this to occur, the applicability of the defense has to be
clearly indicated and must appear on the face of the pleading to be used as the basis for the
motion”). “Dismissal at the pleading stage on statute-of-limitations grounds,” the Federal
Circuit has said, “ordinarily is improper unless it is ‘apparent from the face of the complaint
that the case is time-barred.’” ABB Turbo, 774 F.3d at 985 (quoting La Grasta, 358 F.3d at
845-46). But see 5B Charles Alan Wright & Arthur R. Miller, supra, § 1357, at 714 (“A
complaint showing that the governing statute of limitations has run on the plaintiff’s claim

CBCA 4068

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for relief is the most common situation in which the affirmative defense appears on the face
of the pleading and provides a basis for a motion to dismiss under Rule 12(b)(6).”).
In its motion, the agency does not cite to SMARTECH’s complaint, but instead
focuses exclusively upon, and cites to, provisions of the contract between DOE and
SMARTECH. That omission does not necessarily defeat the agency’s motion. In
considering a motion to dismiss for failure to state a claim, “materials attached to a complaint
may be considered as exhibits that are part of the complaint for determining the sufficiency
of the pleadings.” Pennington Seed, Inc. v. Produce Exchange No. 299, 457 F.3d 1334, 1342
n.4 (Fed. Cir. 2006); see Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is
an exhibit to a pleading is a part thereof for all purposes.”). In addition, a tribunal “must
consider . . . documents incorporated into the complaint by reference, and matters of which
a [tribunal] may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007). “Even where a document is not incorporated by reference, the [tribunal]
may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’
which renders the document ‘integral’ to the complaint.” Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002) (quoting International Audiotext Network, Inc. v. American
Telephone & Telegraph Co., 62 F.3d 69, 72 (2d Cir. 1995)); see Perry v. New England
Business Service, Inc., 347 F.3d 343, 345 n.2 (1st Cir. 2003); Pension Benefit Guaranty
Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Here,
although SMARTECH did not attach the contract to its complaint, it repeatedly cites to,
quotes from, and relies upon the contract in its complaint, rendering it integral to the
complaint. Accordingly, we can look to the terms of the contract in considering the agency’s
motion to dismiss without converting it into one for summary relief.
II.

Whether Any of SMARTECH’s Claims are Time-Barred

A claim against the United States first accrues on “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.” 48 CFR 33.201. “Therefore, where a claim
is based upon a contractual obligation of the Government to pay money, the claim first
accrues on the date when the payment becomes due and is wrongfully withheld in breach of
the contract.” Oceanic Steamship Co. v. United States, 165 Ct. Cl. 217, 225 (1964).
DOE contends that SMARTECH’s claims accrued under the terms of the contract at
the end of each annual or bi-annual performance period and that, because five of the six
performance periods at issue in this appeal ended more than six years before SMARTECH’s
claim submission, SMARTECH’s appeal for those five periods – those for the second base
year and the first three option periods – is untimely. There is some historical support for
DOE’s position. In Nager Electric Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966),

CBCA 4068

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in which the Court of Claims considered accrual under the statute of limitations applicable
to the Tucker Act, now located at 28 U.S.C. § 2501 (2012), the Court recognized that, as a
general rule, a claim accrues as soon as services are performed or goods are delivered, which
is the point at which the contractor can demand payment from the Government:
For contract cases, in the era before use of “disputes” clauses (or like devices
for administrative determination), the general principle was . . . that normally
the cause of action first accrues, and the statute begins to run, when the work
is completed or the items delivered (and accepted), or the services rendered,
or (if the contract was never completed) when the breach became total. That
was considered to be the time when the contractor could ordinarily demand his
money and bring his suit if payment was not made. Voluntary efforts
thereafter to obtain compensation through executive channels or by negotiation
would not defer or toll limitations.
Id. at 851-52; see Battelle v. United States, 7 Ct. Cl. 297, 300-301 (1871) (“We think the
claim ‘first accrued,’ in the language and meaning of the statute, when the right to demand
the price for the property sold first vested in the petitioner,” since “[t]he purpose of a statute
of limitation requires that it should not leave the time at which it is to attach at the control
of the creditor”). Under that general rule, a claim can accrue before the contractor ever
submits an invoice to the Government. Nevertheless, the Court of Claims in Nager Electric
further “recognized that this is not a rigid rule – that, in the contract field as in others, a
particular agreement, or a special statute, can establish some other pre-condition for liability
or an unusual time for demanding payment.” Nager Electric, 368 F.2d at 852. Accordingly,
although identifying what it viewed a general rule for accrual, the Court of Claims
determined that, because of the variety of circumstances applicable to and contract terms
used in government contracts, “there is no single inexorable principle of limitations for
contract litigation.” Id. Instead, to determine an accrual date, “the individual terms,
conditions, and practices must always be studied.” Id. at 852-53.
If, as the Government seems to suggest here, Congress had “intended definitely to fix
the time when the claim should accrue in every case, [the statute creating the limitations
period] would simply have provided that every suit should be commenced [or, as relevant
here, every claim should be submitted] within six years after the service was rendered or the
articles called for were furnished.” Manufacturers Aircraft Association, Inc. v. United States,
77 Ct. Cl. 481, 523 (1933) (considering statute of limitations language in Tucker Act). The
general rule in Nager Electric only applies “[w]here . . . a call for performance” – for
example, an invoice requesting payment – “is not an essential element of the cause of
action.” Nyhus v. Travel Management Corp., 466 F.2d 440, 453 (D.C. Cir. 1972), cited in
Hurst v. United States, 220 Ct. Cl. 616, 617 (1979). Conversely, “[w]here a demand is

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necessary to perfect a cause of action, the statute of limitations does not commence to run
until the demand is made.” Id. at 452; see Wright v. United States, 221 Ct. Cl. 913, 914
(1979) (plaintiffs’ cause of action for payment of claims under alleged contract involving
mining rights “did not accrue until demand for payment was made and refused”);
Manufacturers Aircraft, 77 Ct. Cl. at 523 (“In this case there was no breach and the royalties
claimed did not accrue and become payable under the agreement until reports had been made
and invoices or bills rendered.”).
The prerequisite acts necessary for a claim to accrue, then, are entirely dependent on
the language of the government contract at issue. Nager Electric, 368 F.2d at 852-53; see
Oceanic Steamship, 165 Ct. Cl. at 225 (“Of course, in determining when money becomes due
and payable under a contract, it is necessary to ascertain the nature of the agreement that the
parties have made on this point.”); Manufacturers Aircraft, 77 Ct. Cl. at 522 (“[o]rdinarily
a cause of action accrues when the service [provided pursuant to the contract] is rendered or
the articles are furnished and the obligation to pay therefor arises, but this is not a hard and
fast rule and whether the cause of action in a particular case accrues at such time depends
upon the agreement or arrangement between the parties.”); see also United States v. Cocoa
Berkau, Inc., 990 F.2d 610, 613 (Fed. Cir. 1993) (“to determine when the entry bond was
breached,” at which point the claim would accrue, “we look to the language of the bond
stipulating the relevant obligations of the bond principal and its surety” (emphasis added)).
In arguing that its March 28, 2014, claim was timely, SMARTECH cites to the
“Payments under Time-and-Materials and Labor-Hour Contracts” clause in its contract,
which provides for the Government’s payment after the contractor’s submission of vouchers:
The Government will pay the Contractor as follows upon the submission of
vouchers approved by the Contracting Officer or the authorized representative.
48 CFR 52.232-7. SMARTECH argues that, because it had to submit its voucher for
payment as a prerequisite to DOE’s obligation to pay under the contract, the limitations
period did not begin to run until it submitted a payment request for the unpaid fixed fees. It
also alleges that its contract did not require it to submit invoices by a specific deadline each
year, and it identifies a contract provision, clause H.9(a), that defines the contract as a single
multiple-year unit, including the option periods, that concludes only at the end of the multiyear contract performance period. Exhibit 8 at 33 (defining the “term” of the contract “as
the total contract period, including all exercised options” (quoted in Complaint ¶ 20)). Based
upon this language, SMARTECH alleges that it was entitled to include previously unbilled
costs from the entirety of its contract performance from 2003 through 2008 in its final
contract wrap-up invoice and that such an invoice would be timely.

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The situation that SMARTECH alleges exists here is similar to that in Parsons-UXB
Joint Venture, ASBCA 56481, 09-2 BCA ¶ 34,305, in which the Government asserted that
the contractor’s claim for reimbursement of general excise taxes was untimely. The taxes
at issue had been assessed and paid in 1998, but the contractor did not submit an invoice for
reimbursement under the Allowance Cost and Payment clause until August 2007. After
denying the reimbursement request, the Government argued that a reasonably prudent
contractor would have submitted an invoice for reimbursement in 1998, but the board found
that, since the contract did not affirmatively require the contractor to have done so and since
payment was not due until “requested,” there was no breach that would cause the statute of
limitations to begin to run until the Government denied a contractor-submitted invoice:
Appellant claims a breach of the Allowable Cost and Payment clause. That
clause provides that “[t]he Government shall make payments to the Contractor
when requested as work progresses.” There was no breach until appellant
requested payment and the government rejected the request. Hence, the claim
is timely.
Id. at 169,459 (emphasis added); see Todd Pacific Shipyards Corp., ASBCA 55126, et al.,
11-1 BCA ¶ 34,759, at 171,087 (“there can be no breach of that [payment] clause, and
therefore no claim accrual from which the limitation period is measured, until the contractor
requests payment and the government fails to pay”); see also Continental Insurance Co. v.
Coyne International Enterprise Corp., 700 F. Supp. 2d 207, 213 (N.D.N.Y. 2010) (“[w]hat
counts, for statute of limitations purposes, are the date[ ] that invoices were sent . . . for
premiums due and [the date that the recipient of the invoices] declined to pay” (quoting
Potomac Insurance Co. of Illinois v. Richmond Home Needs Services, Inc., No. 04-CV-4335,
2006 WL 2521283, at *2 (S.D.N.Y. Aug. 30, 2006)).
Had the contract required SMARTECH to submit invoices for all costs by a particular
date each year, the statute of limitations likely would have started to run, depending on the
contract language, on or soon after each year’s contractual deadline for invoicing. See
Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 900-01 (9th Cir. 2006)
(where contract required that invoice be sent “at the conclusion of the project,” statute of
limitations began to run well before contractor submitted invoice for payment two-and-a-half
years after project conclusion). Further, if the contract language did not require any invoice
or other action by the contractor to perfect the Government’s obligation to pay, the
limitations period might commence, again depending on the contract language, upon the
Government’s failure to pay by the due date – that is, by the date of the Government’s
breach. See Cannon v. United States, 146 F. Supp. 827, 830 (Ct. Cl. 1956) (Government’s
failure to make payment “when due” starts the running of the statute of limitations). Here,
though, neither the complaint nor DOE identifies any specific deadline for submitting the

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12

necessary invoice for the fixed fees. On a motion to dismiss for failure to state a claim,
where we make all reasonable inferences in the nonmovant’s favor, DOE has failed to meet
its burden of establishing that SMARTECH’s claim for fixed fees accrued at some point
more than six years before March 28, 2014, when SMARTECH submitted the claim.4
We recognize that, if taken to its extreme, SMARTECH’s theory – that the limitations
period does not start to run under its contract until the contractor submits an invoice and the
Government denies it – would be untenable. Under its theory, SMARTECH presumably
could have waited ten or twenty years to submit its invoice and, by so doing, deferred accrual
of its fixed fee claim. Yet “it cannot be true that one who has a claim against another which
he can perfect and make actionable by acts within his own power can keep the claim alive
indefinitely by merely refraining from doing those acts.” Duhame v. United States, 135 F.
Supp. 742, 744 (Ct. Cl. 1955). “[W]here a preliminary step is required before suit is begun,
a reasonable time will be granted therefor but only a reasonable time.” Dawnic Steamship
Corp. v. United States, 90 Ct. Cl. 537, 579 (1940). Here, though, we need not decide how
long SMARTECH could have waited to submit either an invoice or its claim. SMARTECH
submitted the claim within six years of the contract completion date, which, at least based
upon the current record and making all reasonable inferences in SMARTECH’s favor,
satisfies the CDA six-year statute of limitations.5

4

Even if the contract did not suggest that the Government’s denial of or failure to
pay an invoice commences the running of the statute of limitations under this particular
contract, SMARTECH has alleged in its complaint that clause H.9(a) of the contract defines
the contract, including any exercised options, as a single multiple-year unit. See Exhibit 8
at 33 (quoted in Complaint ¶ 20). Without contractual deadlines expressly requiring payment
of the fixed fee annually or bi-annually, there is no reason to believe that the statute of
limitations started to run on any fixed fee until performance of the single unit contract was
complete. See Johnson, 437 F.3d at 900-01. SMARTECH submitted its claim to the
contracting officer within six years of the 2008 contract completion date, precluding any
argument that the claim submission was untimely.
5

DOE also argues that the “fixed fee” aspect of SMARTECH’s contract was not
truly a fixed fee, but instead was intended to represent a profit markup of eight percent upon
hourly direct costs incurred as part of contract performance. It appears that, based upon that
argument, DOE believes that SMARTECH was required to invoice that “fixed fee” profit
markup at the same time that it submitted invoices for its direct costs, most of which were
submitted more than six years before SMARTECH’s certified claim. In support of its
argument, DOE cites to a document that, although a part of the appeal file that DOE
submitted to the Board, is not identified in SMARTECH’s complaint. Because DOE’s

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13
Decision

For the foregoing reasons, respondent’s motion to dismiss for failure to state a claim
is DENIED.

_____________________________
HAROLD D. LESTER, JR.
Board Judge
We concur:

____________________________
STEPHEN M. DANIELS
Board Judge

_____________________________
H. CHUCK KULLBERG
Board Judge

argument is dependent upon material from outside of the appellant’s complaint, we cannot
consider it on a motion to dismiss for failure to state a claim. Payne Enterprises v.
Department of Agriculture, CBCA 2899, 13 BCA ¶ 35,261, at 173,082.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A3affc8d9977e08b3. Public record. Not legal advice.