The U.S. Government (USG) asked our client to build, supply and maintain a battlefield camp to support Iraqi forces that would join U.S. forces during the Second Battle of Fallujah. Our client verbally agreed to provide the services, only to find out at contract execution that the Interim Iraqi Government (IIG), not the USG, would be the contracting agency.

When our client declined to sign the contract, citing concerns about getting paid from the IIG, USG contracting personnel promised that the USG would facilitate payment from the IIG to our client. With that assurance, our client signed the contract and began performing the services.

Performance of the project turned out to be far more difficult than USG officials anticipated and our client incurred costs far in excess of the contract price.  For example, our client had been informed that it would not be required to provide its own security and, instead, could rely upon the security provided by US forces.  During contract performance, however, authorized USG officials directed our client to retain its own security.   Our client completed contract performance under very difficult circumstance, including numerous fire fights (one of which claimed the life of one of our client’s employees). Notwithstanding the fact it completed the contract under these circumstances, the IIG refused to pay our client the complete contract price, much less an equitable adjustment to the contract price to compensate our client for the additional security it was directed to hire.

For a variety of reasons, filing suit against the IIG to recover both the balance of the contract price and the equitable adjustment was simply not an option.  After reviewing the facts, as well as documentation obtained during discovery in a separate but related case, we discovered an email from the USG representative to the IIG Ministry of Defense in which the USG official counseled the IIG not to pay anything further to our client.  As a result of that discovery, we determined that our client could sue the USG in the United States Court of Federal Claims under the Tucker Act, asserting separate causes of action for breach of contract related to the additional security forces the USG directed our client to hire and the express oral agreement to facilitate payment to our client which the USG had clearly breached by instructing the IIG not to pay our client for the balance of contract performance.

The USG filed numerous motions to dismiss the lawsuit, but our case survived and, as a result, we were able to negotiate a favorable settlement on behalf of our client, recovering millions of dollars our client had spent performing the project.