Concession contracts with the Government are different than procurement contracts. Generally a concession contract does not involve the procurement of property or services by the Government. In addition, prior COFC decisions have noted that the CDA does not even apply to concession contracts. So what happens when a concession contract incorporates the CDA contracts disputes FAR clause? This was this issue faced in Coffee Connections, Inc. v. United States, No. 11-048C.
In this case, a concession contractor appealed the Government’s termination of its concession contract by filing a complaint before the COFC. (It was not clear from the decision whether or not this was a NAFI contract.) Although the contract included a disputes clause incorporating the text of FAR 52.233-1 and utilizing the CDA claim framework, the contractor failed to submit a claim with a sum certain to the contracting officer prior to filing its complaint. The Government moved to dismiss the complaint on that basis, but the COFC denied the motion. Consistent with prior COFC decisions, Judge Sweeney reminded the parties that the “CDA does not apply to concession contracts. This is true even if the contract states that the CDA applies because ‘only Congress can waive sovereign immunity; parties may not by contract bestow jurisdiction on a court.’” Judge Sweeney also rejected the Government’s argument that, even if the CDA doesn’t apply, the contractor must still abide by the terms of the written contract requiring that a claim containing a sum certain be presented to the contracting officer before an appeal can be lodged at the COFC. Judge Sweeney determined that incorporating the CDA disputes provision essentially was “flawed and unworkable.” For example, there would be “no time periods that dictate when the contracting officer must furnish a written decision. Thus, in the absence of controlling law, the contract mandates that the plaintiff must submit a claim to the contracting officer, but the contract does not mandate that the contracting officer issue any timely decision on that claim.” She concluded by pointing out to Government counsel that “[i]t is the government’s responsibility, when preparing contract documents for its concessionaires to sign, to present a contract document that is in accordance with law.” The COFC ultimately exercised jurisdiction over the dispute as a “standard breach of contract suit under the Tucker Act [28 USC §1491(a)(1)].”