DynPort Vaccine Company LLC

August 12, 2015Judge James

Denied / Government PrevailedContract InterpretationCDA Jurisdiction

DynPort Vaccine Company LLC moved to dismiss Count 3 of the government's complaint, which alleged breach of the implied covenant of good faith and fair dealing arising from the same operative facts as two clause-based counts. The Board denied the motion, concluding that Count 3 asserted the same operative facts and essentially the same relief and that no contractual provision barred the theory.

Material Facts

The contract incorporated FAR 52.246-8, INSPECTION OF RESEARCH AND DEVELOPMENT-COST-REIMBURSEMENT.
Lonza Hopkinton, Inc. was a subcontractor engaged to manufacture BOT antigens.
Lonza Hopkinton, Inc. was default terminated.
Modification No. P00431 directed DynPort to add a subcontractor to complete the work terminated in Lonza Hopkinton's subcontract.
Modification No. P00431 cited FAR 52.246-8(h) and attributed the no-cost work requirement to alleged willful managerial misconduct and/or habitual employee carelessness.
Modification No. P00431 did not allege breach of an implied duty of good faith and fair dealing.
The government's complaint alleged habitual carelessness, lack of good faith/willful misconduct, and breach of the implied covenant of good faith and fair dealing.
Count 3 arose from the same operative facts as Counts 1 and 2.
Count 3 sought contractor liability for the costs of performing the remedial change order work at no cost to the government.

Parties

Appellant: DynPort Vaccine Company LLC
Contract Number: DAMDl 7-98-C-8024

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