Guarantee Co. of North America USA v. Ikhana, LLC, No. 18-1394 (Fed. Cir. 2019)
Annotate this CaseThe Army Corps of Engineers awarded Ikhana a contract to build a Pentagon facility by October 12, 2015. Ikhana procured required performance and payments bonds from GCNA, which required Ikhana to execute a general indemnity agreement, including a provision that assigned GCNA all rights under the contract if Ikhana defaulted or if GCNA made a payment on any bond. Each time Ikhana discovered a new worksite problem, it had to halt work until the Corps issued a unilateral contract change, causing significant delays and cost overruns. One modification required a power outage at the Pentagon, but the Corps never scheduled the outage. By mid-October 2015, construction stopped; Ikhana submitted claims seeking additional compensation and an extension of the deadline. Ikhana’s sub-contractors filed claims against GCNA’s bond. The Corps terminated Ikhana and made a claim on the bond. Ikhana appealed the termination and its claims to the Armed Services Board of Contract Appeals. GCNA and the Corps negotiated for GCNA to tender a completion contractor. GCNA invoked the indemnity agreement and entered into a settlement with the Corps then sought a declaratory judgment that the agreement authorized it to settle Ikhana’s dispute with the Corps and dismiss the Board appeal. The district court stayed GCNA’s action pending resolution of Ikhana’s Board appeal. The Federal Circuit affirmed the denial of GCNA’s motion to intervene and withdraw Ikhana’s Board appeal. GCNA lacked standing. A party seeking to supplant the plaintiff must be able to show that it could have initiated the complaint on its own. GCNA’s settlement agreement with the Corps, even if it constitutes a takeover agreement, does not entitle GCNA to assert claims that arose before the settlement.
The court issued a subsequent related opinion or order on May 29, 2020.
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