In most litigation, the plaintiff and the defendant are equally susceptible to being sanctioned by the court for bad or dilatory behavior. However, government contracts litigation is not most litigation. In government contracts litigation (claims or protests), the contractor is more susceptible to being sanctioned than the government. But the government is not entirely immune to being sanctioned, as was evident in a recent case (discussed in this blog last month) where the Court of Federal Claims recently imposed monetary sanctions on the EPA for backdating a document during a bid protest.
Another example of the government being sanctioned came recently in Brasfield & Gorrie, LLC, v. Dept. of Veterans Affairs, CBCA 3300, 3354, 3538, Nov. 13, 2014. In that case, the Civilian Board of Contract Appeals (CBCA) imposed sanctions on the VA for its “egregious” abuses of the discovery process. The following passage speaks for itself as to what the CBCA thought of the VA’s behavior in the case:
And we agree with B&G that the VA’s abuse of the discovery process has been egregious. The agency’s approach to discovery in this case is reminiscent of the approach it took in Ocwen Loan Servicing, LLC v. Department of Veterans Affairs, CBCA 1073, 09-1 BCA ¶ 34,102: we’ll get you the documents you’re looking for whenever we get around to it, and if the Board issues orders directing production earlier, we won’t pay any attention to them. The VA maintains here, as it did in Ocwen, that difficulties with its computer systems prevent it from responding to discovery requests more promptly. The agency tells us that it has nearly300,000 employees, and that delivering technologyservices to an organization this large is a complex task. We have no doubt that these assertions are true. The complexity of the task is not an excuse for abusing the discovery process, however. It should be instead an incentive for the VA to master the challenge of using technology. Large government agencies, like other litigants, must use whatever tools they have available to respond to reasonable discovery requests in a prompt, complete way. Whether the VA’s failure to meet this objective is due to incompetence, inattention, or purposefulness, it is sanctionable conduct.
Over the better part of a year, the VA has made and broken commitments to provide to B&G ESI [electronically-stored information] which the VA acknowledges is likely to be, or to lead to, evidence relevant to these appeals. The agency has not abided by Board orders to produce this information and has failed to request enlargements of time in which to meet prescribed deadlines. Reasons given for the failure to produce documents include slow collection of ESI, computer system malfunctions, and inadequate staffing of information technology professionals. Most recently, the VA confesses that it must seek help from a consultant in order to get its computer systems to do what they are supposed to do with regard to ESI which is discoverable in these appeals. Meanwhile, little progress is being made toward resolution of the appeals, which involve claims for nearly $50 million on a major medical center construction project.
While the CBCA determined that it lacked authority to impose monetary penalties on the VA as a sanction, it did order the VA to allow Brasfield & Gorrie or an independent third party access to the VA’s computer system, at the VA’s expense, to collect ESI which has not been forthcoming though it is responsive to discovery requests. While this may not be as harsh a sanction as court would have issued, it certainly shows that the government is not immune to being sanctioned in government contracts litigation.