ASBCA blocks Army Corps bid to suppress KiewitPhelps ruling
Exempt material gets redacted under the Freedom of Information Act; the opinion itself was never the Corps' bargaining chip.
TL;DR
The Armed Services Board of Contract Appeals (ASBCA) on June 25 rejected the U.S. Army Corps of Engineers’ request to keep unpublished a May 4 merits decision in KiewitPhelps’ Offutt Air Force Base construction delay appeal; the ruling became public July 16. Contractors and agencies litigating under ASBCA protective orders still get a redaction process tied to FOIA exemptions. They do not get to trade publication away as part of a global settlement.
The Corps wanted a global settlement of KiewitPhelps’ U.S. Strategic Command facility delay appeals to include one unusual term: the Armed Services Board of Contract Appeals (ASBCA) would keep its 148-page May 4 merits decision out of public view. The Board declined. In a June 25 decision, released July 16, it said the Freedom of Information Act (FOIA) and Board rules required publication after the ordinary FOIA-exemption redaction process, and the Corps had shown no basis for suppressing an issued opinion.
That matters beyond one construction dispute at Offutt Air Force Base. Protective orders are routine in contract appeals because records can contain pricing, proprietary, technical or sensitive information. The usual answer is redaction. The Corps asked for publication itself to vanish because the parties reached a global settlement after the Board decided entitlement. If that move worked, adverse merits reasoning could become part of the price of settlement whenever quantum or related appeals remained open.
The Board’s procedural account is also telling. It convened a status conference, warned that pressing the motion could draw more attention to the opinion, and offered the parties a chance to withdraw. KiewitPhelps did not submit additional briefing; according to the Board, its interest appeared to be payment under the settlement and avoiding further litigation. The Corps pressed ahead with arguments based on the Contract Disputes Act, 41 U.S.C. § 7105(g), non-finality because quantum remained unresolved, and vacatur equities. The Board rejected each one.
For contractors, the operational point is narrow and useful. If an ASBCA appeal contains protected material, propose FOIA-grounded redactions. If the objective is to erase inconvenient Board reasoning after the opinion issues, expect the Board to treat the request as a transparency problem.
Published ·Deep Fathom