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CDA Limitations Period May Be Equitably Tolled

A ruling of the Civilian Board of Contract Appeals dismissing contract support cost claims for lack of jurisdiction was reversed and remanded by the Court of Appeals for the Federal Circuit because the board erroneously concluded the Contract Disputes Act's six-year presentment period was not subject to equitable tolling. The contractors were Indian tribes that provided health care services to their members under government contracts authorized by the Indian Self-Determination and Education Assistance Act. The board dismissed the tribes' claims on the ground the claims were not presented to a contracting officer within the time allowed by Section 605(a) the CDA, which states claims against the government "[s]hall be submitted within 6 years after the accrual of the claim" (41 USC 605(a)). The board declined to extend the six-year period in light of equitable considerations, concluding the six-year period was not subject to either legal or equitable tolling (08-2 BCA 33,923).


In reversing the board, the court explained that, under Irwin v. Dept. of Veterans Affairs (498 US 89), there is a presumption "that Congress intended equitable tolling to be available unless there is good reason to believe otherwise." The precedent cited by the government was inapplicable because it involved a statute of limitations that had been held to be absolute. On the other hand, equitable tolling of Section 605(a) was an issue of first impression, and the statute was of "relatively recent vintage." Also, Section 605(a) was enacted after the Irvin decision, so it was reasonable to construe the statute in light of the decision's general presumption.

Factors Supported Tolling

In determining whether a time limitation is subject to equitable tolling, a court is to consider "the statute's detail, its technical language, its multiple iterations of the limitations period in procedural and substantive form, its explicit inclusion of exceptions, and its underlying subject matter" (U.S. v. Brockamp (519 US 347)). The statutory time limitation of Section 605(a) is a simple provision that does not contain technical language, the six-year period is provided in simple terms, the statute does not contain any explicit exceptions, and the language of the time limitation is not emphatic. Thus, there was strong support for equitable tolling. The case was remanded to the board for a determination as to whether, under the circumstances of the case, the limitation period should be tolled. (Arctic Slope Native Assn., Ltd. v. Sebelius, CA-FC, 53 CCF 79,184)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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