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Implications of Six Year Statute of Limitations for Submittal of Claims

Writer: R.D. Lieberman,ConsultantR.D. Lieberman,Consultant

The Contract Disputes Act includes a six year statute of limitations for submittal of claims.  41 U.S.C. § 7103(a)(4)(A). This section had been interpreted as a jurisdictional bar that caused many cases at the Boards and in the Court of Federal Claims to be dismissed immediately without further development of the case.  See, e.g., Sys. Dev. Corp. v. McHugh, 658 F. 3d 1341, 1347 (Fed. Cir. 2011).  Two years later, the Supreme Court overruled Sys. Dev. and articulated a more stringent test for determining when a statutory time limit is jurisdictional.  Auburn Reg. Med. Center, 132 S. Ct. 817, (2013). The Supreme Court held that filing deadlines ordinarily are not jurisdictional” instead, absent a clear statement that such deadlines were jurisdictional, they were “ ‘quintessential claim-processing rules.’”  The Federal Circuit, in Sikorsky Aircraft Corp. v. United States, 773 F. 3d 1315 (Fed. Cir. 2014) held, when considering this statute of limitations, the statute does not speak in jurisdictional terms and does not provide clear evidence that this provision was mean to carry jurisdictional consequences.


This blog has explained the result, but the significance of this is very clearly stated in a recent Armed Services Board decision, Red Bobtail Trans., ASBCA No. 63789. June 12, 2024.


First, there is no basis to dismiss an appeal for lack of jurisdiction if the 6 year statute of limitations on claim submission is not met.


Second, failure to meet the statute can be used as an affirmative defense on the merits, whereas a motion to dismiss for lack of jurisdiction is a threshold challenge to the Board/Court’s jurisdiction.  A merits challenge has res judicata (claim preclusion) effect.

The Government bears the burden of proving its affirmative defense, rather than the claimant bearing the burden of establishing jurisdiction before the case can proceed.

 

As noted above, in the past, when the government immediately moved to dismiss for lack of jurisdiction, the forums often converted this into a motion to dismiss for failure to state a claim, and then into a motion for summary judgment, which would have claim preclusive effect.  In the current situation, that would not be possible, and the burden would falls to the government to prove its affirmative defense.


Takeaway.  Object to have a jurisdictional dismissal where the statutory claim submission has not been met.  Insist that the government prove its defense, rather than merely note the statute of limitations was not adhered to.


 For other helpful suggestions on government contracting, visit:


Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.


 
 
 

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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