Triple Canopy, Inc. v. Secretary of the Air Force, No. 20-2165 (Fed. Cir. 2021)
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Triple Canopy, a private security company, had six fixed-price contracts for security services in Afghanistan, awarded by the Department of Defense. Each contract required that Triple Canopy comply with local law and incorporated Federal Acquisition Regulation 52.229-6, which states: [T]he contract price shall be increased by the amount of any after-imposed tax or of any tax or duty … if the Contractor states in writing that the contract price does not include any contingency for such tax and if liability for such tax, interest, or penalty was not incurred through the Contractor’s fault, negligence, or failure to follow instructions of the Contracting Officer or to ... take all reasonable action to obtain exemption." After repeatedly seeking exemptions, Triple Canopy paid a penalty ($430,994.97) that the Afghan government imposed based on the company having more than 500 employees.
Within six years of making payment, Triple Canopy submitted claims. The Armed Services Board of Contract Appeals denied the claims as untimely, 41 U.S.C. 7103(a)(4)(A).
The Federal Circuit reversed. Triple Canopy’s claims did not accrue until July 6, 2011, when the Afghan government responded to Triple Canopy’s April 8, 2011 appeal. Triple Canopy’s June 6, 2017 claim submission was within the six-year limitations period Triple Canopy had to comply with the requirement that it “take all reasonable action” to obtain “exemption” from the assessment, which meant appealing the assessment.
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