A few years back, a string of decisions at the Armed Services Board of Contract Appeals and the Court of Federal Claims invoked the Contract Disputes Act’s six-year statute of limitations to dispose of several long-pending contractor and government claims. Under the case precedent then in force, the CDA’s statute of limitations was considered “unequivocally jurisdictional,” and a party bringing a claim bore the burden of demonstrating it presented its claim to a contracting officer within six years of the claim’s accrual. This made the statute of limitations a potent tool for cutting litigation short early in an appeal. The Court of Appeals for the Federal Circuit overturned that precedent two years ago in Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014), which transformed the six-year statute of limitations from a jurisdictional prerequisite (which could be invoked at the outset of an appeal to gain a dismissal) into a plain-vanilla affirmative defense, which the opposing party bears the burden of proving (and which seldom will support a dismissal at the outset of an appeal). In Kellogg Brown & Root Services Inc. v. Murphy, No. 2015-1148 (KBR), the Federal Circuit recently dulled the edge of the CDA’s statute of limitations further still.
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Reprinted with permission.