The CAFC Revives Boeing's Challenge to FAR’s Implementation of CAS Offset Rules: Impacts for Government Contractors Subject to CAS and Future Implications Under Loper Bright

The US Court of Appeals for the Federal Circuit (“CAFC”) reversed and remanded the US Court of Federal Claims’ (“COFC”) most recent dismissal of Boeing’s challenge to the Government’s implementation of CAS’s offset rules through Federal Acquisition Regulation (“FAR”) Section 30.606, holding that the “‘true nature of the action’ is undoubtedly a contract dispute” because it involves a disagreement on contract price adjustments and Boeing’s resultant challenge to the Government’s demand for payment of over US$1 million. Boeing now should get a hearing on the merits of its challenge to the Government’s refusal to permit offsets stemming from multiple cost accounting practice changes. However, the holding also has broader implications for contractors seeking to potentially invalidate regulations that directly bear on contractual issues.

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About Gale Monahan

Gale Monahan is a partner in the Firm’s Government Contracts practice where he focuses on government contracts counseling, litigation and internal and government investigations. Gale's counseling practice focuses primarily on cost and pricing, the Cost Accounting Standards (CAS), termination, business systems, domestic preference, and international government contracting issues.

About Natalie Seelig

Natalie Seelig is a member of the US Government Contracts practice and focuses on all aspects of government contracts counseling and litigation.

About Steven Masiello

Steven M. Masiello is the chair of the US Government Contracts practice and a leader of the firm's Global Government Contracts and Procurement group. Masiello serves as lead counsel in complex government contract matters across numerous industry segments concerning state, federal, and foreign military funded transactions in the US courts, agency boards and under domestic and international alternative dispute resolution procedures.

About Seamus Curley

Seamus Curley is a partner in the Firm’s Government Contracts practice where he focuses on government contracts counseling, litigation and internal and government investigations. Seamus has litigated in state and federal courts throughout the country, including under multiple pro hac vice admissions, and before administrative forums, including the US Court of Federal Claims (COFC), the US Government Accountability Office (GAO), the US Civilian Board of Contract Appeals (CBCA), the Armed Services Board of Contract Appeals (ASBCA) and the US Small Business Administration Office of Hearings and Appeals (SBA OHA) on bid protests, size protests/appeals, Contract Disputes Act (CDA) claims, and commercial litigation matters.