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CLIENT ALERT: Mayberry Enterprises, LLC v. Dep't of Energy

A recent decision by the Civilian Board of Contract Appeals provided a reminder that separate claims under the CDA's $100,000 certification threshold may be presented to the government together in a single document without aggregating the claims and requiring certification. In Mayberry Enterprises, LLC v. Dep't of Energy, CBCA 5961 (2018), the Board distinguished this issue from attempts by contractors to segregate unitary claims into separate claim letters to avoid the certification requirement. Instead, in Mayberry, the contractor submitted separate claims arising out of different and unrelated problems encountered during contract performance. The contractor elected to include all of its three claims in a single letter, but the Board noted "there is no reason that the three sets of claims could not have been submitted in separate claim letters." Citing Placeway Construction Corp. v. United States, the Board reviewed the appropriate analysis for whether two or more separate claims, or only a fragmented single claim, exists. 920 F.2d 903 (Fed. Cir. 1990).  It explained that substance wins out over the form of the submission, and the question requires a tribunal to "assess whether or not the claims are based on a common or related set of operative facts," because, "if the tribunal will have to review the same or related evidence to make its decision… then only one claim exists." Id.

By:  Brian Vella and Nora Brent