               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of--                          )
                                      )
Eyak Technology, LLC                  )            ASBCA Nos. 58552, 58553
                                      )                       58554,58555
                                      )
Under Contract Nos. W912HZ-05-D-0015 )
                    W912HZ-09-C-O 114 )
                    W912HZ-09-C-O 115 )
                    W912HZ-09-C-0116 )

APPEARANCES FOR THE APPELLANT:                     Paul F. Khoury, Esq.
                                                   Roderick L. Thomas, Esq.
                                                   John R. Prairie, Esq.
                                                   Samantha S. Lee, Esq.
                                                    Wiley Rein LLP
                                                    Washington, DC

APPEARANCES FOR THE GOVERNMENT:                    Thomas H. Gourlay, Jr., Esq.
                                                    Engineer Chief Trial Attorney
                                                   Katherine D. Denzel, Esq.
                                                    Engineer Trial Attorney

             OPINION BY ADMINISTRATIVE JUDGE MELNICK
      ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE
       ALTERNATIVE, TO DISMISS GOVERNMENT CLAIM, AND ON THE
        GOVERNMENT'S CROSS-MOTION FOR SUMMARY JUDGMENT

       These are appeals from contracting officer final decisions claiming a total of
$29,414,881.94 from Eyak Technology, LLC (EyakTek). The amount reflects alleged
contract overpayments made to EyakTek by the United States Army Corps of Engineers
(Corps) as a result of a fraudulent scheme masterminded by a Corps employee, and that
also involved an EyakTek employee and various subcontractors. EyakTek seeks
dismissal on the ground that the government's claims improperly assert fraud. The
government cross-moves for summary judgment, claiming the undisputed facts show that
it overpaid EyakTek and that it is entitled to recover the overpayments. Both motions are
denied.
        STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS

       The following facts are not in dispute:

         1. Between 20 11 and 2012, eleven individuals, including two former government
employees and one former employee ofEyakTek, pled guilty to certain crimes after being
charged with participating in a bribery and kickback scheme involving contracts with the
Corps (SUMF ,-r,-r 1-9; ex. A-8 at 2-3). 1 In summary, two Corps contracting officials
facilitated the award of subcontracts to corrupt companies in return for payments. The
subcontractors then included false or inflated amounts in their invoices to the Corps'
prime contractors, which were then forwarded to the two Corps officials for payment
approval. (SUMF ,-r,-r 4-12) The final judgments against many ofthe defendants included
orders to pay restitution for disbursal to the Corps as the victim of their crimes
(SUMF ,-r,-r 10-12; exs. A-15, -16,-18,-20,-22,-31, -37). 2 Among those orders was one
issued to the purported leader of the conspiracy, former Corps employee Kerry Khan,
which requires him to pay restitution in the amount of$32,553,252.93 (ex. A-37 (Minute
Order entry 7/1112013)). EyakTek has also been informed by the Department of Justice
that it is under investigation respecting the scheme. It has met with the Department to
discuss resolution of potential claims under the False Claims Act and the Anti-Kickback
Act. (Ex. A-35)

        2. On 20 December 2012, a Corps contracting officer issued final decisions to
EyakTek, asserting government claims for the return of payments made on Contract
Nos. W912HZ-05-D-0015, W912HZ-09-C-0114, W912HZ-09-C-0115, and
W912HZ-09-C-0116. The decisions refer to the criminal conspiracy and generally
describe a series of events in which subcontractors invoiced EyakTek for work that was
not performed, included fictitious line items and costs in purchase orders, or issued false
invoices. These acts were typically at the direction of Mr. Khan, or with his knowledge
or that ofEyakTek's convicted employee. They describe markups EyakTek added to the
invoices that it then forwarded to the Corps for payment, accompanied by certifications
that the identified work was performed. They calculate that the Corps ultimately
overpaid EyakTek a total of$29,414,881.94. Together, the decisions seek payment of
that amount from EyakTek. (Exs. A-8 to -11) EyakTek filed a notice of appeal to this
Board from all ofthe decisions on 15 February 2013.


1
   "SUMF" refers to the Statement of Undisputed Material Facts in Support of Motion
       for Summary Judgment or to Dismiss Government Claim filed by EyakTek with
       its motion. Exhibits A-1 to A-35 were filed by EyakTek with its motion.
2
  Ex. A-37 was filed with EyakTek's Second Supplemental Memorandum in Support of
       Motion for Summary Judgment or to Dismiss Government Claim, which includes
       this appeal in its heading along with Eyak Services, LLC, ASBCA Nos. 58556,
       58557.

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       3. EyakTek now moves for summary judgment, or dismissal of its appeals for
lack of jurisdiction, on the ground that the contracting officer's decisions are based upon
the fraudulent conduct of particular individuals. It relies upon a statutory prohibition
upon agencies settling or compromising fraud claims on their own to contend that the
decisions are nullities. Alternatively, EyakTek suggests that the government's claims
should be dismissed to avoid the possibility of inconsistent decisions between this forum
and those adjudicating the fraud.

       4. The government cross-moves for summary judgment, claiming that the
undisputed facts show that the amounts it seeks represent overpayments made on the
contracts for goods that were not delivered. It contends it is entitled to recover the
overpayments as a matter of law.

                                        DECISION

I.     EyakTek's Motion

       These appeals are from government claims contained in the four final decisions
issued against EyakTek. Under the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109, we may only entertain an appeal from a final decision on a proper CDA
claim. See Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107,
1111-12 (Fed. Cir. 2013). In this context, the adequacy of the claim does not pertain to
whether it is meritorious; it relates to whether the claim complies with the requirements
of the CDA. "If a purported claim is found to be insufficient for any reason, the
insufficiency is fatal to jurisdiction under the CDA." !d. at 1112. Because EyakTek's
arguments implicate our jurisdiction, we consider them through the lens of a motion to
dismiss for lack of jurisdiction. See Raytheon Missile Sys., ASBCA No. 58011, 13 BCA
~ 35,241 at 173,015 (treating a request for a declaration that a government claim is time
barred under the CDA as a motion to dismiss for lack of jurisdiction).

       The CDA forbids agencies from relying upon it "to settle, compromise, pay, or
otherwise adjust any claim involving fraud." 41 U.S.C. § 7103(c)(1). Thus, contracting
officers may not pursue claims for penalties or forfeitures arising from fraud in their final
decisions, and this Board lacks jurisdiction over appeals involving such claims. See
Martin J. Simko Constr., Inc. v. United States, 852 F.2d 540 (Fed. Cir. 1988); Public
Warehousing Co. K.S.C., ASBCA No. 58078, 13 BCA ~ 35,460 at 173,896-97. EyakTek
contends that the government's claims against it involve fraud because they arise from its
criminal prosecution of the conspirators and involve their false subcontractor charges
(app. mot. at 8-11). EyakTek suggests that the government does not have a contractual
basis for its claims because the government does not allege that it paid EyakTek more
than the fixed prices of its delivery orders. Instead, it says the decisions allege that the
amounts paid were inflated by fraud.



                                              3
       The government's claims against EyakTek do not arise from any alleged fraud by
EyakTek. The government simply seeks the return of alleged overpayments that it claims
EyakTek was not entitled to receive. The claims allege that an established, fraudulent
conspiracy by others, which included government, contractor, and subcontractor
personnel, caused the government to make overpayments to EyakTek for work that was
never performed, or in amounts that were unjustifiably inflated (SOF ~ 2). The
government does not base its claims upon any alleged responsibility EyakTek bears for
that scheme. The fact that EyakTek is the subject of a fraud investigation by the
Department of Justice is irrelevant. Whatever that investigation may lead to, the
government's claims here are not premised upon fraud.

         Contrary to EyakTek's suggestion, the government's claims assert a cognizable,
non-fraud basis for recovery based upon the established doctrine that the government is
required to recover amounts paid to a contractor that the contractor was not entitled to
receive. FAR 32.601-605; Acme Process Equip. Co. v. United States, 347 F.2d 538,
551-52 (Ct. Cl. 1965) (acknowledging that the government can recover "funds which its
agents have wrongfully, erroneously, or illegally paid"); Fansteel Metallurgical Corp. v.
United States, 172 F. Supp. 268,270 (Ct. Cl. 1959) (holding that it is the duty ofthe
government to sue for recovery of erroneous payments), accord Altos Fed. Grp., ASBCA
No. 53523, 07-2 BCA ~ 33,657 at 166,678. EyakTek attempts to distinguish this
precedent, arguing that it never invoiced for more than the contract price. Thus, the
government is not really seeking the return of erroneous payments, but instead claiming
the contracts' prices were fraudulently inflated. (App. opp'n and reply at 7-8) As
already noted, the government is not contending that it was defrauded by EyakTek. It is
alleging that it paid EyakTek more than it was entitled to receive due to the fraudulent
acts of others. EyakTek has not established that the government must prove EyakTek
itself committed fraud in order to recover overpayments made to it. As was the situation
in Medica, S.A., ENG BCA No. PCC-142, 00-2 BCA ~ 30,966 at 152,812, a case relied
upon by EyakTek, "[w]hether fraud or other illicit acts were committed in the course of
the events underlying the Government's claims are separate matters," and "[t]he Board is
not deciding whether fraud ... occurred." The government's claims implicate the parties'
contract rights, not whether EyakTek committed fraud. We have jurisdiction to decide
these issues. See M&M Servs., Inc., ASBCA No. 28712, 84-2 BCA ~ 17,405 at 86,688.

        EyakTek also contends that "[t]he Government's claims should ... be dismissed to
avoid the possibility of inconsistent decisions between the Board and the appropriate
tribunals for pursuing civil and criminal remedies for the fraudulent activity at issue in
the Final Decisions" (app. mot. at 1-2, 11-12). Relying on the fact that it is the subject of
a civil fraud investigation by the Department of Justice, EyakTek suggests that there
might be an inconsistency between the decision of this Board and the actions of the
Department of Justice or other tribunals. Therefore, the government's claims must be
dismissed for lack of jurisdiction. EyakTek cites no authority for the proposition that a
government claim against a contractor is subject to dismissal if the Department of Justice


                                              4
is also investigating the contractor for civil fraud. Nor does EyakTek support its
contention that a government claim must be dismissed because there could be
inconsistencies between the proceedings here and those of other agencies or fora. Under
certain circumstances, it could be appropriate to stay an appeal here to avoid
inconsistencies. See Public Warehousing, 13 BCA ~ 35,460 at 173,897. But, given that
currently there is only an investigation ofEyakTek taking place, EyakTek has not
provided any basis for finding that a suspension is necessary, nor has a motion for a stay
been filed by either party.

       In supplements to its motion to dismiss, EyakTek expands upon its inconsistency
argument, suggesting that a conflict could also arise between the government's claims
here and the restitution awards the government has already obtained against the
individual conspirators. It contends that the restitution awards already compensate the
government for the overcharges the government seeks and therefore these proceedings
could lead to a double recovery by the government. It emphasizes in its reply that this
potential for a double recovery is another reason to dismiss the government's claim for
lack of jurisdiction (app. opp'n and reply at 10-13). We are unaware of authority
depriving us of jurisdiction over the claims because they pose the risk of a double
recovery by the government.

       Rather than restricting our jurisdiction, EyakTek's double recovery concern
potentially relates to the merits of the government's claims. Though precedent permits
the government to seek the return of overpayments made to contractors, its ultimate
entitlement to recover is governed by equitable principles applied in "a case-by-case
determination designed to avoid injustice." USA Petroleum Corp. v. United States,
821 F .2d 622, 625 (Fed. Cir. 1987). Such a review requires the development of a
thorough record which, among other things, should address the events leading to the
alleged overpayments, the roles played by both government and EyakTek personnel in
those activities, the parties' knowledge of the scheme, what they did or should have done
to avoid it, and their reliance upon each other's conduct. See id. at 625-27. It also should
provide specifics about the nature and calculation of the restitution awards, the degree to
which they overlap with the claims here, their potential to be satisfied, and whether
EyakTek continues to possess the allegedly overpaid funds.

       Because the government's claims are proper under the CDA, we possess
jurisdiction to entertain an appeal from them, and since a complete record is necessary to
rule upon their merits, we deny EyakTek's motion.

II.    The Government's Motion

      For similar reasons, we also deny the government's cross-motion for summary
judgment. The government cites its final decisions as evidence of its overpayments to
EyakTek. It suggests that EyakTek's complaint implicitly admits to the overpayments


                                             5
and that the overpayments reflect undelivered goods. It therefore contends that there is
no dispute that it paid for goods and services that were not delivered, and that it is
therefore entitled to recover $29,414,881.94 as a matter oflaw. (Gov't opp'n and
cross-mot. at 13-18)

       Summary judgment should be granted if it has been shown that there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). Significantly, it should only be
granted after there has been adequate time for discovery. !d.

        Because these appeals are from government claims, the government bears the
burden of proof. See Eaton Corp., ASBCA No. 34355, 93-2 BCA '1!25,743 at 128,096,
aff'd, 26 F.3d 140 (Fed. Cir. 1994) (table). Contrary to the government's arguments,
EyakTek's complaint does not admit to the accuracy of the claims' overpayment
calculations or that they reflect undelivered goods. Indeed, the complaint affirmatively
challenges some of the government's calculations (compl. '1!'1!52-53). EyakTek seeks
discovery regarding the government's calculations, which it has not been able to perform
yet (app. reply and opp'n at 15). We will permit that discovery. More fundamentally, as
noted previously, any government entitlement to recover here is governed by equitable
principles we cannot assess without a thorough development of the record. Accordingly,
the government's cross-motion for summary judgment is denied.

                                     CONCLUSION

      Both motions are denied.

      Dated: 1 April2014

                                             ~~~
                                             MARK A. MELNICK
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

I concur                                         I concur



~/44
Administrative Judge
                                                ~FORD
                                                 Administrative Judge
Acting Chairman                                  Vice Chairman
Armed Services Board                             Armed Services Board
of Contract Appeals                              of Contract Appeals


                                            6
       I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 58552, 58553, 58554,
58555, Appeals ofEyak Technology, LLC, rendered in conformance with the Board's
Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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