Government Contracts Government Was Not Entitled to Summary Denial of Appeals
Tuesday, February 18, 2020

Government Was Not Entitled to Summary Denial of Appeals

By Government Contracts Editorial Staff

Cross-motions for summary judgment were denied because the Armed Services Board of Contract Appeals found there were factual disputes regarding the government’s compliance with the lease’s conveyance of property and utility transition plan provisions. Pursuant to the base realignment and closure process, the government agreed to convey approximately 495 acres in Hawaii to the contractor. The lease contemplated the government would convey parcels within the period requested by the contractor, but at not less than 180 days after a transfer request. However, the government delayed transfer of 16 parcels for more than 3 years, attributing the delay to the need to prepare new environmental impact statements and comply with the historical preservation process. The contractor sought damages for the government’s untimely conveyance of five parcels, the deprivation of land due to the government’s recommendation to include three parcels in a historic landmark designation, and the government’s alleged failure to implement a utility transition plan.

Factual Disputes and Inadequate Record. The lease’s governing law provision, which provided that United States laws and regulations controlled over any inconsistent lease provisions, had primacy over the 180-day transfer requirement. However, there was a factual dispute regarding the government’s ability to make a timely transfer of the requested parcels. As for the three withheld parcels, the contractor alleged that the government’s recommendation to the Keeper of the National Register of Historic Places resulted in a designation of a much larger site for the historic registry than it had reason to expect, while the government argued that the contractor should have known the parcels were at high risk of being designated a historic landmark because they were related to the Japanese attack on December 7, 1941. Although the contract could not impose obligations impeding the government’s compliance with the National Historic Preservation Act, the government’s representation that only a small portion of the property was likely to be designated and the possibility the contractor could demonstrate the government used the process of identifying historic properties as a pretext to target contractual expectations precluded summary judgement. Finally, the record required development to determine whether the parties entered into good faith negotiations to create a mutually agreeable utilities transition plan. (Kalaeloa Ventures, LLC, ASBCA, ¶95,925)

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