Skye Mathieson

Cost Disallowance & Defective Pricing Litigation (ASBCA)

• Successfully recovered $250+ million for aerospace contractor following CAS-related cost disallowance (matter of first impression).
• Represented defense contractor in successfully obtaining no-cost Government withdrawal of large Defective Pricing (TINA) claim on the eve of trial.
• Defended small IT contractor in recovering 100% of disputed costs following a FAR 31 cost disallowance of executive compensation and bonuses.
• Defended major defense contractor in successfully resolving FAR 31 disallowance of employee morale and entertainment costs.
• Defended small service contractor in recovering 100% of disallowed costs for alleged “labor mapping” violations (allegations that contractor’s employees or subs did not satisfy the contract’s experience or education requirements).
• Successfully recovered $20+ million for technology contractor following CAS-related cost disallowance.
• Defended aerospace contractor in successfully resolving FAR 31 disallowance of executive compensation costs.
• Successfully defended IT contractor against "labor mapping" allegations that the contractor’s employees had failed to satisfy the contract’s experience or education requirements.
• Successfully defended small service contractor in resolving FAR 31 disallowance of G&A elements and subcontract costs.
• Successfully resolved $10+ million CAS-related disallowance of home office overhead costs for aerospace contractor.
• Skye co-teaches (with David Bodenheimer) the annual, two-day Fed Pubs "Defective Pricing Seminar."

Contractor CDA Claims & Disputes (ASBCA, CBCA)

• Successfully recovered 100% of unpaid invoices for small Iraq War contractor on matter of first impression rife with CDA jurisdictional obstacles.
• Successfully represented small health care contractor in interpreting complex modifications to recover 100% of unpaid lease termination costs in connection with U.S. Army health care facility.
• Represented contractor in defeating the government’s motion to stay ASBCA litigation, which the government sought due to related, ongoing litigation at U.S. District Court.
• Successfully represented ship-building contractor in multimillion-dollar resolution of changes and delay claims with the U.S. Navy.
• Negotiated successful settlement agreement with civilian agency to recover tens of millions of dollars in claims for changes, delays, and future work for major technology contractor.
• Representing construction company in $20+ million litigation over differing site conditions, changes, and other claims.

Federal Court Litigation & Prime-Sub Disputes

• Representing health care companies with $1+ billion in statutory and contract claims for unpaid risk-sharing payments (under the Affordable Care Act) at the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims.
• Successfully resolved $20+ million prime–sub dispute for major contractor arising under half-billion-dollar federal program through successful federal court litigation, arbitration, and mediation proceedings.
• Represented technology contractor in multimillion-dollar prime–sub dispute in arbitration proceedings.

GAO Bid Protests

• Successfully defended $158 million contract award for international geospatial intelligence services involving protest allegations of improper cost realism analysis, lack of common understanding, misleading discussions, and unequal technical evaluations. The Boeing Co., B-409941, B-409941.2, Sept. 18, 2014. 
• Successfully represented technology contractor in protesting GSA FSS award involving relaxation of specifications, software end-user licenses, and awardee capabilities.

Default Terminations & Show Cause/Cure Notices

• Successfully defended base-maintenance and repair contractor in responding to cure notice and resolving government threats of imminent default termination.
• Represented Fortune 50 contractor in responding to cure notice and threat of termination with respect to half-billion-dollar commercial item health care IT program.
• Successfully defended small construction company from default termination regarding overseas construction projects.

Representative Litigation for DoD

• Government CDA claim alleging unlimited or government-purpose rights in technical data manuals for Italian-made combat aircraft that Congress transferred to the Afghan military. The litigation involved a matter of first impression – at any tribunal – of whether DoD's technical data rights clause (DFARS 252.227-13) is "mandatory" and thus "read-in" to covered contracts by function of the G.L. Christian Doctrine. Alenia North America, Inc., ASBCA No. 57935 14-1 BCA ¶ 35,724, resolved, ASBCA No. 57935, 2014 WL 7059879 (Dec. 4, 2014).
• Matter-of-first-impression ASBCA litigation involving affirmative defenses of "prior material breach" (based on fraud convictions of employees imputed to the Prime Contractor) used to defeat the Contractor’s affirmative claims for unpaid invoices on a $350 million IDIQ Iraq reconstruction contract. Laguna Construction Co., ASBCA No. 58292, 13 BCA ¶ 35,315 (motion to stay based on ongoing fraud trial), resolved, Laguna Constr. Co. v. Carter, 828 F.3d 1364 (Fed. Cir. 2016) (affirming summary judgment on Skye’s affirmative defenses in a related ASBCA case (following DCMA’s amended Answer to incorporate those defenses)). 
• ASBCA trial over a $9 million claim for unpaid licensing fees stemming from the government's use of contract-writing software. The four-day trial involved numerous witnesses and complex issues of intellectual property ownership, software escrow agreements, licensing rights, novations, and dueling interpretations of both contract modifications and GSA schedule orders. Distributed Solutions, Inc., ASBCA No. 57266, 14-1 BCA ¶ 35,704, aff’d, 2015 WL 5516256 (Fed. Cir. Sept. 21, 2015).
• Bid protest in which GAO announced that overseas acquisitions are exempt from the mandatory "rule of 2" small business set-aside requirement. The GAO, after conducting a Chevron analysis, upheld the Air Force's interpretation of the regulations implementing the Small Business Act over the objections of the SBA, which had intervened in the litigation. Latvian Connection General Trading & Construction, LLC, B-408633, 2013 CPD ¶ 224, aff'd, B-408633.2.
• Pre-award litigation over a partially classified $1 billion high-tech MASINT/GEOINT intelligence-gathering acquisition. The tribunal upheld the Air Force's selection of a "research and development" industry classification, enabling the procurement to proceed as a small-business set-aside. Evanhoe & Associates, LLC, SBA NAICS-5505, 2013 WL 5492238.
• Multi-day ASBCA trial over a Type I & II Differing Site Conditions claim related to debris encountered in a post-hurricane cleanup at an Air Force base. Mylene Will Co., ASBCA 58154, 13 BCA ¶ 35,415.
• Bid protest over $88 million contract for information technology engineering services issued by DoD's U.S. Transportation Command. The protester was excluded from the competitive range after several rounds of discussions and proposal revisions, leading to allegations of misleading discussions and unreasonable technical evaluation. CEdge Software Consultants, LLC, B-409380, 2014 CPD ¶ 107.
• ASBCA appeal over $11 million in subcontract settlement costs stemming from the termination of a $250 million contract for retrofitting KC-10 refueling tankers. Post-hearing briefs involved issues of equitable estoppel, the government's limitation of funds defense, and whether the limitation of funds clause should be calculated at the task order, contract, or engineering assignment level. The Boeing Co., ASBCA 57409, 14-1 BCA ¶ 35,474.
• Bid protest over $25 million small business set-aside contract for bomb-loading and related aerospace ground equipment. Protest involved allegations that the awardee's proposal indicated a lack of compliance with the 50 percent limitation on subcontracting and improper discussions. L&G Technology Services, Inc., B-408080.2, 2014 CPD ¶ 47.
• CDA claim involving allegations of mutual mistake and $2.5 million in reliance-incurred upgrades to telecommunications infrastructure. Bluebird Communications, Inc., ASBCA 58379, 13 BCA ¶ 35,369.
• ASBCA appeal involving a commercial item contract that was terminated for cause, the contractor's claims for unpaid invoices stemming from the termination, and attendant jurisdictional issues related to the monetary claims. United Healthcare Partners, Inc., ASBCA 58123, 13 BCA ¶ 35,277.
• CDA claim for $767,000 in pre-contract information technology services based on a first-impression interpretation of a 2011 Supreme Court decision regarding equitable tolling and its impact on jurisdictional filing requirements. Waterstone Environmental Hydrology & Engineering, Inc., ASBCA 57557, 12-1 BCA ¶ 35,028.
• ASBCA appeal involving the interpretation of FAR 52.217-8 as it related to $292,000 in additional costs arising out of the Air Force's unilateral extension of deliveries for concrete bomb targets. APAC-Southeast, Inc., n/k/a Oldcastle Southern Group, ASBCA 58057, 12-2 BCA ¶ 35,155.
• ASBCA litigation over unpaid invoices, delay damages, and differing site conditions – followed by a default termination and claim for reprocurement – of a construction and well-drilling SABER contract. The claims and defenses involve issues of standby and excusable delay, conflicting contract terms, and waiver of completion dates. MIC/CCS, Joint Venture, ASBCA 58023, 2014 WL 3821354 (July 22, 2014).

Representative Alternative Dispute Resolution (ADR) for DoD

• Successful ADR negotiation and win-win resolution of the high-visibility $147 million F-22 Raptor litigation at the ASBCA. The dispute turned on whether the DoD had sufficiently satisfied several contract triggers that would permit avoidance of $147 million in final-production-lot "tail up" costs (2012). 
• Successful ADR settlement of a multi-party, multi-mediator, multi-variable complex cost allowability dispute over the Air Force's 2008 termination of a $1.6 billion contract for KC-X refueling tankers (2012).
• Successful ADR after a multi-day ASBCA trial over construction delay claims, unabsorbed overhead/Eichleay damages, dueling expert accounting witnesses, and the government's FAR 31 costs disallowances of direct and indirect costs. Ford Construction Co., ASBCA 57822 et al. (2012).
• Successful settlement of a $24 million ASBCA quantum appeal over lost profits – from unexercised option years and the denial of a fair opportunity to compete for task order awards – flowing from the government's breach (10-1 BCA ¶ 34,397) of a $350 million 8(a) multiple award ID/IQ contract. HMR Tech2, ASBCA 57464 (2012).
• Successful ADR settlement of $2.5 million CDA claim for alleged government-directed changes to contract specifications for the construction of hyperbaric research altitude chambers. Environmental Tectonics Corp., ASBCA 58278, 14-1 BCA ¶ 35,598.
• Innovative, successful resolution of non-monetary claims for adjustment or reconsideration of negative CPARS ratings, arising from an Air Force base operations and maintenance contract (2012).