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Contractor's Compliance Did Not Render Appeal Moot

A motion to dismiss an appeal that sought to clarify a lease's handicapped accessibility requirements was denied by the Civilian Board of Contract Appeals because the contractor's compliance with the contracting officer's order to perform corrective work did not render its specific prayers for relief moot. The contractor constructed and leased a building to serve as an agency's new headquarters. The lease stated the building was to be accessible to the handicapped in accordance with federal standards, including the Americans with Disabilities Act Accessibility Guidelines. After it accepted the building and the lease term began, the government determined a platform lift that provided access to the building's elevator bank did not comply with the lease's accessibility requirements. The CO subsequently issued a final decision and notice to cure, which stated the contractor had a continuing obligation to bring the building into compliance pursuant to a lease clause entitled Failure in Performance. The contractor disputed this interpretation in a letter to the CO, arguing the lease's Compliance with Applicable Law clause set forth the appropriate remedies.
Unresolved Controversy
The contractor appealed the final decision but subsequently sent another letter to the CO, stating it would comply with the government's direction as required by the lease's Disputes clause, while not conceding its rights to contest the issue. The government moved to dismiss the appeal, arguing the contractor's actions in response to the CO's final decision rendered moot the specific prayers for relief in the complaint. However, the contractor specifically reserved its right to challenge the legal and factual bases of the government's breach of lease claim. The contractor also requested compensation for performing the work. Specifically, the contractor set forth three prayers for relief. The first prayer challenged the applicability of the Failure in Performance clause to the dispute. The contractor continued to contend this clause was not the correct contractual provision under which to undertake the renovation work. The second prayer stated the contractor was entitled to recover its costs in responding to the government's order. It remained an open question whether the contractor was required to perform the corrective work at its own cost or was entitled to be paid pursuant to a change order. The third prayer concerned the level of compliance, an issue raised by the CO's final decision and disputed by the contractor, which proposed its own solution. The contractor's performance of work did not resolve these controversies. (Second Street Holdings LLC v. SEC, CBCA, ¶92,347)

(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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