In the United States Court of Federal Claims
GILBANE FEDERAL,
Plaintiff,
No. 25-1265
v.
Filed: June 17, 2026
THE UNITED STATES,
Defendant.
Michael A. Branca of Peckar & Abramson, P.C., Washington, D.C., argued for Plaintiff.
Ioana C. Meyer of the United States Department of Justice, Civil Division, Washington, D.C., argued for Defendant. With her on the briefs were Brett A. Shumate, Patricia M. McCarthy, and Steven Michael Mager, of the United States Department of Justice, Civil Division, Washington, D.C.
MEMORANDUM AND ORDER
In June of 2020, only a few months after the President of the United States had declared
the COVID-19 pandemic an emergency, Plaintiff Gilbane Federal (Gilbane or Plaintiff) entered
into Contract No. W912HN-20-C-3006 (Contract) with the Army Corps of Engineers (Corps) for
the construction of a government facility located at Fort Gordon, Georgia. When disputes arose
under this Contract, and after the Corps denied two of its certified claims, Gilbane appealed to
separate venues: one appeal to this Court, and one appeal to the Armed Services Board of Contract
Appeals (ASBCA).
The first dispute arose when Gilbane submitted a certified claim to the contracting officer
(CO) on May 26, 2022, requesting compensation and a schedule extension. The claim was
partially settled, but the CO denied certain contract modification preparation costs, which Gilbane appealed to the ASBCA on September 19, 2023. The second dispute arose after Gilbane
encountered delays allegedly caused by labor shortages, worker illnesses, and similar labor
difficulties due to the COVID-19 pandemic. On June 7, 2024, Gilbane submitted a second certified
claim to the CO seeking 61 days of excusable, non-compensable delay to the Contract completion
date, in addition to contract preparation costs. The CO denied Gilbane’s second certified claim on
August 6, 2024, and on July 31, 2025, Gilbane filed suit in this Court under the Contract Disputes
Act (CDA) to appeal the second denial. Gilbane seeks two forms of relief in this Court: (1) sixtyone days of excusable, non-compensable delay and (2) the reimbursement of $30,537.67 in
administrative costs related to proposal preparation and modification and claim preparation.
On January 9, 2026, Defendant the United States filed a Motion to Transfer and Stay
Proceedings, seeking to transfer this action to the ASBCA pursuant to 41 U.S.C. § 7107(d), which
permits the Court of Federal Claims to transfer cases to agency boards. Defendant contends that
this Court should transfer the present action because, among other reasons, the proceedings at the
ASBCA arose out of the same Contract and concern an overlapping issue. Plaintiff opposes the
Motion to Transfer.
As articulated below, this Court has broad discretion when considering a Motion to
Transfer under 41 U.S.C. § 7107(d). In examining the present case, all of the factors favor transfer
of the action to the ASBCA. Accordingly, this Court GRANTS Defendant’s Motion to Transfer
and Stay Proceedings (ECF No. 12).
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STATEMENT OF FACTS 1
I. The Contract
On May 31, 2019, the Corps issued Solicitation No. W912HN-19-R-3004 for the
construction of a new “Cyber Instructional Facility and Network Center” at Fort Gordon, Georgia.
ECF No. 1 (Complaint) ¶ 5. Plaintiff, a “full-service general contractor,” submitted its final
proposal for the facility on September 13, 2019. Id. ¶¶ 2, 7. On March 13, 2020, the President of
the United States declared a national emergency related to the COVID-19 pandemic. Id. ¶ 9. On
June 19, 2020 (280 days after Gilbane submitted its final proposal), the Corps awarded Gilbane
firm-fixed-price Contract No. W912HN-20-C-3006 that covered construction of the facility in
exchange for $96,903,333. Id. ¶ 8.
Plaintiff claims that the COVID-19 emergency negatively “impacted” its work and the
work of its subcontractors. Id. ¶ 13. The impacts included an “[o]verall lack of labor resources,”
a concrete subcontractor’s “inability to find qualified manpower in the local area,” a “[s]maller
pool of crew and supervision that were qualified to access Fort Gordon,” and “[i]ndividual worker
illnesses caused by COVID-19.” Id.
On October 15, 2021, Plaintiff indicated in a monthly schedule update that the project had
fallen 31 days behind schedule. Id. ¶ 15. On October 25, 2021, the Corps issued a Letter of
Concern regarding schedule delays. Id. ¶ 16. Plaintiff and its subcontractors took several measures
to address the delays, including overtime work, higher wages, and “out of area recruitment.” Id.
¶ 18. On January 12, 2022, the Corps issued Request for Proposal (RFP) 0027, which addressed
1
The Court accepts the facts in the Complaint as true for the purpose of resolving the Motion. See Rockwell Automation, Inc. v. United States, 70 Fed. Cl. 114, 116 n.2 (2006); see also ECF No. 12 (Motion to Transfer or Mot.) at 5 n.2 (“For this statement of facts, we rely on the allegations in Gilbane’s complaint, [and] exhibits to its complaint . . . . We respectfully reserve the right to challenge any of the facts alleged by Gilbane in the future, should this motion be denied.”).
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project delays due to COVID-19, and subsequently agreed to extend the completion period to
January 20, 2022. Id. ¶ 20.
Despite mitigation efforts that Plaintiff allegedly undertook, delays mounted, and Plaintiff
requested 69 days of excusable, non-compensable delay on February 14, 2022. Id. ¶ 21. Plaintiff
also requested $21,645.00 “for proposal preparation costs, which included time incurred by
Gilbane’s Project Executive and Project Controls-Scheduler.” Id. The Corps denied that request
as lacking merit on February 22, 2022; Plaintiff then provided supplemental material to support its
submission. Id. ¶¶ 22, 23. On April 27, 2022, the Corps issued Unilateral Modification
A000018/R00021, which granted Gilbane eight days of excusable, non-compensable delay for
delays that accrued through January 20, 2022. Id. ¶ 26.
In response, Plaintiff indicated that it intended to submit a Request for Equitable
Adjustment (REA). Id. ¶ 27. Plaintiff submitted its REA on March 11, 2024, seeking 61 days of
excusable non-compensable delay. Id. ¶ 29. Plaintiff calculated the 61-day figure by subtracting
the eight days granted by the Government from the 69 days that Plaintiff had earlier requested. Id.
¶ 29. The Corps denied the REA on March 29, 2024. Id. ¶ 30.
II. Plaintiff’s Court of Federal Claims Suit
On June 7, 2024, Plaintiff filed a Certified Claim with the CO that sought relief on the same
grounds as the denied REA. Id. ¶ 31; see ECF No. 1-2 (Certified Claim) at 2. In its Certified
Claim, Plaintiff sought 61 “calendar days of excusable, non-compensable extension” and
$30,537.67 for REA preparation costs. Certified Claim at 2. On August 6, 2024, the CO denied
Plaintiff’s Certified Claim, finding “no merit” in either the sixty-one-day schedule extension or
the claim for $30,537.67 in costs. ECF 12-1 (Defendant’s Appendix or Appendix) at 2 (emphasis
in original). With respect to the claim for 61 days of excusable, non-compensable delay, the CO
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found that Plaintiff “did not show that the days it request[ed] were excusable and attributable to
COVID-19.” App. at 13. The CO denied the claim for $30,537.67 in REA preparation costs
because the REA itself “lack[ed] merit.” Id. at 15. In addition, the CO determined that the contract
modification preparation and execution costs that Plaintiff claimed were an attempt to “recover the
same costs twice.” Id. at 15. Specifically, the CO stated that the Government believed that
Plaintiff was double counting the same contract modification costs both “through its G&A rate
and a second time directly as a line item.” Id. Additionally, the CO found that Plaintiff “did not
segregate its REA preparation costs in any meaningful way for the [Corps] to discern which costs
are REA preparation costs (allowable) versus which costs are modification proposal preparation
and execution costs (not allowable).” Id. at 16.
Plaintiff appealed the CO’s denial of the Certified Claim in its entirety to the Court of
Federal Claims, and this appeal is the subject of the present action (COFC Claim). Compl. at 8.
III. Plaintiff’s ASBCA Suit
In addition to the present suit, Plaintiff previously appealed to the ASBCA a separate,
adverse CO decision arising out of the same Contract. Specifically, on May 26, 2022, Plaintiff
submitted to the CO a separate, certified claim in connection with the same Contract. Mot. at 8;
App. at 22 (May 26, 2022, Certified Claim). The May 26, 2022, Certified Claim sought
$999,034.00 plus interest and a 22-day extension “resulting from the Government’s direction to
insulate the Medium Temperature and High Temperature Chilled Water Supply Lines,” which
Plaintiff alleges was outside the scope of the Contract. App. at 22–23; see ECF No. 14 (Response)
at 9. The money sought in the Certified Claim included costs related to modification preparation
and execution costs. Resp. at 9.
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The parties resolved most, but not all, of the issues raised in the May 26, 2022, Certified
Claim before the CO issued a final decision. Mot. at 8. On June 22, 2023, the CO denied the
portion of the May 26, 2022, Certified Claim relating to a line item of $8,041.69 for “Preparation
and Execution of Mod.” Id. The CO found that Plaintiff had improperly included modification
proposal costs as both direct and indirect costs. Id. at 8–9. On September 19, 2023, Plaintiff
appealed the CO’s final decision to the ASBCA and requested “$8,041.69 in modification
preparation and execution costs.” Id. at 9; Resp. at 9. Plaintiff’s ASBCA appeal was docketed as
number 63717 (ASBCA Claim) and, to date, the Corps has answered the Complaint and provided
the Rule 4 file. 2 Mot. at 9, 12. The ASBCA Claim was stayed by joint agreement of the parties
through September 8, 2025, in order to consolidate that appeal with two others: ASBCA appeals
63702 and 63775. Id. at 4 n.1, 9. ASBCA 63702 and 63775 each concern a separate contract, not
at issue here, between Plaintiff and the Corps. Resp. at 9.
PROCEDURAL HISTORY
Plaintiff filed its Complaint on July 31, 2025. The Court granted multiple unopposed
motions for extensions of time for Defendant to respond to the Complaint. See ECF Nos. 8, 11.
On January 9, 2026, Defendant filed the present Motion to Transfer to the ASBCA and Stay
Proceedings. On January 30, 2026, Plaintiff filed its Response in opposition to Defendant’s
Motion. On February 6, 2026, Defendant filed its Reply in support of its Motion. ECF No. 15
(Reply). The Court conducted oral argument on April 29, 2026, and the Motion is ripe for review.
Minute Entry dated Apr. 30, 2026.
2
The Rule 4 file at the ASBCA includes all documents related to the contract at issue that the agency considers “relevant” to the appeal. See DFARS App. A Rule 4(b).
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LEGAL STANDARD
I. Transfer to Agency Boards
The CDA allows the Court of Federal Claims to transfer cases to the ASBCA either “for
the convenience of parties or witnesses or in the interest of justice”:
If 2 or more actions arising from one contract are filed in the United States Court
of Federal Claims and one or more agency boards, for the convenience of parties
or witnesses or in the interest of justice, the United States Court of Federal Claims
may order the consolidation of the actions in that court or transfer any actions to or
among the agency boards involved.
41 U.S.C. § 7107(d). Here, an “agency board” includes the ASBCA. Id. § 7101(2)(A). This Court
“possesses broad discretion in exercising its power to consolidate” or transfer a case to an agency
board. Joseph Morton Co. v. United States, 757 F.2d 1273, 1280 (Fed. Cir. 1985). The decision
to transfer a suit filed in this court to an agency board is a “discretionary action that embraces a
variety of factors, and is an ad hoc determination.” Multi-Roof Sys. Co., v. United States, 5 Cl. Ct.
245, 247 (1984) (citing E.D.S. Fed. Corp. v. United States, 1 Cl. Ct. 212, 214 (1983)).
In weighing a decision to transfer a case to an agency board, the Court of Federal Claims
has considered the following factors:
(1) Whether the dispute before the board and the court concern the same contract;
(2) whether the claims before the court and the board duplicate claims or have
overlapping and related issues; (3) whether plaintiff initially chose to appeal its
claims before a court or a board; (4) whether one forum or the other has already
made significant progress on the claims; (5) whether concurrent resolution would
result in an inefficient allocation of the court’s, board’s, or party’s resources; (6)
whether separate forums would reach inconsistent results.
Avant Assessment, LLC v. United States, 134 Fed. Cl. 323, 332–333 (2017) (quoting Morse Diesel
Intern., Inc. v. United States, 66 Fed. Cl. 801, 804 (2005)); see CH2M Hill Hanford Grp., Inc. v.
United States, 82 Fed. Cl. 139, 145 (2008) (considering materially identical factors); Rockwell
Automation, 70 Fed. Cl. at 126 (same); Highway and Safety Servs., Inc. v. United States, No. 23-7
1854, 2024 WL 1298555, at *2 (Fed. Cl. Mar. 26, 2024) (same). The Federal Circuit “has not
explicitly commented on this framework, but has upheld Court of Federal Claims decisions that
have relied on it.” CH2M Hill, 82 Fed. Cl. at 145 (citing In re Morse Diesel Int’l, 163 Fed. App’x
878, 879 (Fed. Cir. 2006)).
DISCUSSION
Plaintiff and Defendant (collectively, the Parties) agree that the six-factor test described in
Avant Assessment should dictate the outcome of the present Motion but disagree as to whether the
factors favor granting the Motion. 3 Mot. at 9–10; Resp. at 10. Accordingly, the Court analyzes
each of the six factors in turn.
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In addition to the six factors listed in Avant Assessment, the Parties raised an additional jurisdictional question in the briefing and at oral argument. The Parties agree that Gilbane’s appeal to this Court occurred after the 90-day deadline had passed to appeal the instant claim to the ASBCA. Resp. at 10 n.1; Reply at 6; see also 41 U.S.C. § 7104(a) (providing 90 days for appeal to the ASBCA after receipt of the contracting officer’s final decision), id. § 7104(b)(3) (providing one year for appeal to the Court of Federal Claims after receipt of the contracting officer’s decision). Plaintiff avers that this raises the question of whether the ASBCA would have jurisdiction over the instant claim in the event of a transfer. Resp. at 10 n.1. The Court finds that the overwhelming weight of authority indicates that the ASBCA will retain jurisdiction over the claim upon transfer regardless of the original deadline to appeal before the ASBCA. See Glenn v. United States, 858 F.2d 1577, 1580–81 (Fed. Cir. 1988) (recommending transfer and consolidation with an ASBCA claim under a predecessor statute despite the fact that the case had been brought in the Court of Federal Claims outside of the 90-day time limitation at the ASBCA); Meltech Corp. v. United States, No. 21-1532C, 2023 WL 1960803, at *2 (Fed. Cl. Feb. 13, 2023) (“Nothing in § 7107(d) limits this Court’s transfer authority to complaints filed within 90 days of the contracting officer’s decision.” (citing Glenn, 858 F.2d at 1581)); see also Suffolk Constr. Co. v. Gen. Servs. Admin., CBCA No. 4377, 16-1 BCA ¶ 36,476 (Civilian Board of Contract Appeals finding that “the COFC’s authority to transfer actions to agency boards under 41 U.S.C. § 7107(d) is not limited to only those actions filed with the COFC within ninety days of receipt of the CO’s final decision.” (citing Glenn, 858 F.2d at 1581)); Logics, Inc., ASBCA No. 46914, et al., 01-2 BCA ¶ 31,482, at 155,419 (“[O]ur jurisdiction in a transfer case is predicated on timely suit rather than a notice of appeal”); Southwest Marine, Inc. v. United States, 680 F. Supp. 327, 329–30 (N.D. Cal. 1988) (transferring a suit filed outside of the 90-day window in the district court to the ASBCA). But see Nova Grp./Tutor-Saliba v. United States, 127 Fed. Cl. 591, 595–96 (2016) (declining to transfer a claim filed at the Court of Federal Claims outside the 90-day window to the ASBCA because “[i]t would not be prudent for this Court to transfer a case to a forum which might lack
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I. Same contract
The first factor to consider before transfer is whether both disputes concern the same
contract. See Colonna’s Shipyard, Inc. v. United States, 146 Fed. Cl. 713, 716 (2020). In this
case, the Parties agree that the COFC Claim and ASBCA Claim each concern the same Contract.
Resp. at 11, Reply at 2. Accordingly, the first factor favors transfer.
II. Related and overlapping issues
When the claims before the Court of Federal Claims and the agency board “either duplicate
each other or have overlapping and related issues,” the interest of justice supports transfer. Avant
Assessment, 134 Fed. Cl. at 333. “Neither the statute nor the case law require that the issues
presented in each case be entirely synonymous to justify consolidation or transfer.” Colonna’s
Shipyard, 146 Fed. Cl. at 716.
Defendant argues claims in both fora involve the same legal issue: whether Plaintiff’s
claimed contract modification and preparation costs are recoverable under the Contract; and that
both claims relate to the same clauses of the Contract. Mot. at 11, ECF No. 18 (Oral Argument
Transcript or OA Tr.) 4:24–5:7. According to Defendant, because “[r]esolution of one cost claim
would necessarily resolve the other,” the two issues present sufficient overlap to warrant transfer.
Mot. at 11. Plaintiff does not dispute that both claims involve the same cost recovery issue but
argues that the “overriding issue” in the COFC Claim is not the cost accounting issue but rather
jurisdiction”). Finally, while not dispositive, the Court memorializes that at oral argument, the same agency counsel who is counsel of record before the ASBCA represented to this Court that, post-transfer to the ASBCA, Defendant will not move to dismiss the instant claim for untimeliness and that Defendant will enter into a tolling agreement with Plaintiff at the ASBCA should the ASBCA dismiss the instant claim sua sponte. OA Tr. at 10:19–23; 29:1–17.
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the “[r]esponsibility for delay and relief from liquidated damages” associated with the 61 days of
alleged COVID-19 related delays, an issue not present in the ASBCA Claim. 4 Resp. at 12.
As both claims involve the same underlying legal question of whether Plaintiff can recover
certain contract modification costs, this factor favors transfer. In the COFC Claim, the Parties
dispute “whether [Plaintiff] double-counted its RFP preparation and contract modification
administration costs by including these costs as a line item and in its indirect General and
Administrative Rate (G&A rate).” Id. at 8. In the ASBCA Claim, the Parties dispute “whether
[Plaintiff] included the modification and execution costs as direct cost[s] under a specific line item
and again as part of Gilbane’s indirect G&A rate.” Id. at 9. Each dispute concerns the proper cost
accounting of Plaintiff’s modification preparation costs under the same Contract. Where the
claims “differ in specific factual detail” but the “overall proof regarding th[e] counts . . . require[s]
almost identical legal analyses and presentations of similar evidence,” transfer is warranted.
CH2M Hill, 82 Fed. Cl. at 146 (citing Giuliani Contracting Co. v. United States, 21 Cl. Ct. 81, 83
(1990)).
While the COFC Claim also includes the alleged COVID-19 related delay issue, this
additional issue does not preclude transfer. Claims need not be “entirely synonymous” to justify
transfer, and transfer can be warranted even where independent issues exist in only one forum if
there is sufficient overlap between the two cases. Colonna’s Shipyard, 146 Fed. Cl. at 716. For
instance, in CH2M Hill Hanford Group, only “two of the three counts in each complaint” involved
“the same respective clauses in the Contract or . . . the same legal analyses” but, despite this, there
remained “extensive overlap between the two actions.” 82 Fed. Cl. at 146. Similarly, in BES
4
At oral argument, Defendant’s counsel indicated that the Government has not yet filed a counterclaim against Gilbane for liquidated damages; accordingly, the Court does not consider this argument here. OA Tr. at 5:21–6:3.
10
Design/Build, both claims involved different aspects of performance under the same contract, but
the board claim related to “delay, a specific pay application, and the termination for default” while
the Court of Federal Claims case dealt with “pay for additional paint and sewer line work.” BES
Design/Build, LLC v. United States, 157 Fed. Cl. 668, 671–72 (2022). In that case, the court
concluded that the “same issues, broadly speaking” still needed to be addressed to resolve both
claims. Id. at 672.
Transfer is inappropriate when the issues arising from the same contract are generally
distinct and do not overlap. For example, in Precision Pine & Timber, Inc. v. United States, the
agency board appeal involved the question of damages related to a default, whereas the Court of
Federal Claims case involved the government’s compliance with the Endangered Species Act. 45
Fed. Cl. 134, 136 (1999); see also Northrop Grumman Corp. v. United States, 70 Fed. Cl. 230,
233 (2006) (finding that the “essential issue before the ASBCA is not the same issue as is before
this court”); Rockwell Automation, 70 Fed. Cl. at 126–27 (finding that the “disputed matters focus
on the interpretation of different portions of the contractual language” and that “findings and
conclusions” in one forum would not “affect the claims pending before the other adjudicatory
body.”).
Accordingly, the common legal issue present in both the ASBCA Claim and the COFC
Claim weighs in favor of transfer.
III. Choice of forum
“Plaintiff’s first choice of forum is relevant to deciding which forum will hear the case,
assuming that consolidation is appropriate.” Precision Pine & Timber, 45 Fed. Cl. at 137
(emphasis in original). Defendant argues that Plaintiff’s initial choice to file the first claim
concerning this Contract with the ASBCA supports transfer. Mot. at 11–12 (citing CH2M Hill, 82
11
Fed. Cl. at 149 (considering plaintiff’s initial choice to file a similar claim under the same contract
with the agency board)). Plaintiff counters that its filing of this specific claim for COVID-19-related delay with the Court of Federal Claims demonstrates its preference for the issue to be
litigated in this forum, and that this Court should “consider Gilbane’s ‘preference for one forum
over another.’” Resp. at 13 (quoting Rockwell Automation, 70 Fed. Cl. at 127).
As noted, consolidation of these claims lodged under the same Contract is appropriate in
this case; therefore, Plaintiff’s initial choice of forum supports transfer. While Plaintiff might
prefer to litigate its COVID-19 delay claim in the Court of Federal Claims, the Court looks to
“whether [P]laintiff initially chose to appeal its claims before a court or a board.” Avant
Assessment, 134 Fed. Cl. at 332 (citing Morse Diesel, 66 Fed. Cl. at 804); see also Colonna’s
Shipyard, 146 Fed. Cl. at 717 (rejecting plaintiff’s argument that it filed a separate claim “and
brought it here to the Court precisely because it wanted separate review” as “irrelevant as to which
forum [plaintiff] first pursued”); BES Design/Build, 157 Fed. Cl. at 672 (“Because plaintiff’s
[agency board] cases were filed first, this factor favors transfer.”).
Accordingly, since Plaintiff’s initial choice was to file a claim under the Contract in the
ASBCA, this factor supports transfer.
IV. Risk of delay
Where the “ASBCA has clearly invested more substantial resources in [the ASBCA claim]
than the court has in the instant litigation,” the interest of justice and judicial economy favor
transfer. Colonna’s Shipyard, 146 Fed. Cl. at 717. On the other hand, “[i]f one forum has
conducted extensive proceedings, placing all of plaintiffs’ claims in that one forum might lengthen
unduly its proceedings.” Am. Renovation & Constr. Co., 77 Fed. Cl. at 104. In the ASBCA action,
the Parties have filed the complaint, answer, and initial Rule 4 filing but have not yet begun
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discovery. Mot. at 12, OA Tr. at 8:18–25. In the present suit, the Parties have only filed the
Complaint and briefed the Motion to Transfer.
Plaintiff cites Precision Pine to support its argument that transfer and consolidation of the
two claims would unduly lengthen proceedings in the ASBCA. See Resp. at 13. However, in
Precision Pine, the parties before the agency board had already filed cross motions for summary
judgment and had almost completed briefing on those motions. Precision Pine, 45 Fed. Cl. at 137.
Similarly, in American Renovation and Constr. Co., where the Court of Federal Claims denied a
motion to transfer and instead opted to stay the case until resolution of the ASBCA appeal, the
ASBCA had already made “extensive progress” before the Court of Federal Claims ruled on the
motion to transfer. 77 Fed. Cl. at 105.
In this case, the ASBCA is somewhat further along in resolving the claim before it than is
this Court, but unlike in Precision Pine & Timber, the ASBCA is not currently considering
dispositive motions and does not appear to be close to a final resolution of the case. Reply at 7. 5
Indeed, the Parties agree that discovery has not yet commenced. OA Tr. at 8:23–25, 18:9–20.
Plaintiff surmises that transfer would cause significant delays associated with “preparing expert
witness testimony and reports associated with the delay claims and relevant defenses,” and that
this type of “fact intensive and complex schedule analysis . . . will hamper the progress already
made at the ASBCA.” Resp. at 13–14. While it is possible that discovery related to the COVIDdelay claim could lengthen the process at the ASBCA if the two cases are consolidated, the fact
that the ASBCA has “invested more substantial resources” on a claim common to both cases but
5
The Court relies on the representation the Parties made at oral argument. Even if discovery at the ASBCA has commenced since oral argument, the Parties there are still not as advanced as the parties were in Precision Pine. See Precision Pine, 45 Fed. Cl. at 137.
13
also is not close to a final resolution of that claim, means that transfer would be the most efficient
outcome. See Colonna’s Shipyard, 146 Fed. Cl. at 717. Accordingly, this factor favors transfer.
V. Preventing duplication
“The court’s resources are better allocated to matters that are not being evaluated
concurrently by a separate tribunal.” Colonna’s Shipyard, 146 Fed. Cl. at 717. Where “two cases
will likely involve identical legal analyses and related presentations of factual evidence,” transfer
is appropriate. CH2M Hill, 82 Fed. Cl. at 149.
Defendant argues that the cost accounting issue that is common to each claim would result
in the duplication of judicial resources by this Court and the ASBCA. Mot. at 13. Defendant states
that it is “more than likely that depositions will be required of many of the same witnesses” and
that “any document discovery would concern the same sets of documents, resulting in duplicative
work to prepare, produce, and review those documents.” Id. At oral argument, Defendant
specifically identified two project executives involved in both claims who, Defendant averred,
would need to be deposed in both cases. OA Tr. at 24:20–25:15. Plaintiff argues that any such
duplication would be “minimal” since, in Plaintiff’s view, the cost accounting issue is largely a
legal dispute and, further, that the delay claim would require additional depositions and discovery
related to Plaintiff’s concrete subcontractor that would not be necessary in the ASBCA Claim.
Resp. at 14; OA Tr. at 15:5–7.
However, the potential for non-duplicative discovery related to the delay claim is
irrelevant. Instead, the question is whether continuing, concurrent litigation of the overlapping
issue in two different forums would duplicate efforts. See Colonna’s Shipyard, 146 Fed. Cl. at
717. While Plaintiff believes that any such duplication would be “minimal,” even minimal
duplication weighs in favor of transfer under this factor. Resp. at 14; see Colonna’s Shipyard, 146
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Fed. Cl. at 717 (“Even if the litigation in this court is less ‘robust’ than the litigation before the
ASBCA, as plaintiff suggests, it is litigation nonetheless.”).
Accordingly, this factor supports transfer. For each forum to review substantially similar
evidence and depose the same witnesses in two claims that share a common legal issue would be
unnecessarily duplicative and an inefficient use of party and judicial resources.
VI. Collateral estoppel
Transfer may be proper when resolution of a related claim in one forum would bind a
second forum, otherwise known as collateral estoppel. See CH2M Hill, 82 Fed. Cl. at 149.
Collateral estoppel “holds that once a court has decided an issue of fact or law necessary to its
judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action
involving a party to the first case.” Id.; see also Kroy IP Holdings, LLC v. Groupon, Inc., 127
F.4th 1376, 1380 (Fed. Cir. 2025) (defining collateral estoppel).
Collateral estoppel applies between the Court of Federal Claims and agency boards. See
Caldera v. Northrop Worldwide Aircraft Servs., Inc., 192 F.3d 962, 971 n.7 (Fed. Cir. 1999)
(“[T]he parties do not dispute that ‘the same principles of judicial efficiency which justify
application of the doctrine of collateral estoppel in judicial proceedings also justify its application
in quasi-judicial [agency] proceedings [at the ASBCA].’” (quoting Graybill v. United States Postal
Serv., 782 F.2d 1567, 1571 (Fed. Cir. 1986))); see also United States v. Utah Constr. and Mining
Co., 384 U.S. 394, 422 (1966) (“When an administrative agency is acting in a judicial capacity
and resolve[s] disputed issues of fact properly before it which the parties have had an adequate
opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”);
Crowley v. United States, 398 F.3d 1329, 1342 (Fed. Cir. 2005) (Dyk, J., concurring) (noting that
15
with respect to the Court of Federal Claims and the Merit Systems Protection Board, “a decision
by one will be collateral estoppel as to the other”), cert. denied, 546 U.S. 1031 (2005).
In this case, resolving either the COFC Claim or the ASBCA Claim would mean resolving
the common legal question of whether Plaintiff can claim contract modification and preparation
costs as a direct or indirect cost. Plaintiff argues that “[t]he facts underlying each modification
and preparation cost could differ,” so there may be no collateral estoppel. Resp. at 15. This
argument is unpersuasive. This Court and the ASBCA are both tasked with interpreting the same
legal issue in the same Contract. This means that the forum that resolves the question first would
estop the other from reviewing the same question. Plaintiff also argues that the issue of delay is
not common to both claims, so the Court could not be estopped from considering that question.
Id. However, the existence of the additional issue in this case does not mitigate the concern that
the ASBCA, which is already further ahead in litigation, “could collaterally estop this Court in
regard to an issue common to both cases” as to whether Plaintiff is entitled to recover costs counted
as a line item and again as part of Plaintiff’s G&A rate. CH2M Hill, 82 Fed. Cl. at 150.
Accordingly, because of the risk of collateral estoppel as to the cost accounting issue, this factor
favors transfer.
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CONCLUSION
After weighing the relevant considerations, the Court concludes that transfer to the ASBCA
is warranted. Accordingly, Defendant’s Motion to Transfer and Stay Proceedings (ECF No. 12)
is GRANTED and this action is TRANSFERRED to the Armed Services Board of Contract
Appeals pursuant to 41 U.S.C. § 7107(d). Accordingly, the Clerk of Court is directed to
TRANSFER this case to the Armed Services Board of Contract Appeals by mailing a certified
copy of this Memorandum and Order and a copy of the docket sheet in this action to the Armed
Services Board of Contract Appeals at 4825 Mark Center Drive, Suite 600, Box 6, Alexandria, VA
22311.
IT IS SO ORDERED.
Eleni M. Roumel
ELENI M. ROUMEL
Judge
June 17, 2026
Washington, D.C.
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