Case: 19-2148 Document: 51 Page: 1 Filed: 08/10/2020
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`THE BOEING COMPANY,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2019-2148
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:17-cv-01969-PEC, Judge Patricia E. Campbell-
`Smith.
`
`______________________
`
`Decided: August 10, 2020
`______________________
`
`MICHAEL W. KIRK, Cooper & Kirk, PLLC, Washington,
`DC, argued for plaintiff-appellant. Also represented by
`CHARLES J. COOPER, JOHN DAVID OHLENDORF; SUZETTE
`DERREVERE, The Boeing Company, Arlington, VA; SETH
`LOCKE, Perkins Coie, LLP, Washington, DC.
`
` ERIN MURDOCK-PARK, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for defendant-appellee. Also repre-
`sented by ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD,
`ROBERT EDWARD KIRSCHMAN, JR.
` ______________________
`
`

`

`Case: 19-2148 Document: 51 Page: 2 Filed: 08/10/2020
`
`2
`
`THE BOEING COMPANY v. UNITED STATES
`
`
`Before MOORE, TARANTO, and CHEN, Circuit Judges.
`TARANTO, Circuit Judge.
`
`From 1992 to 2015, the Boeing Company entered into
`numerous contracts with the United States Department of
`Defense, among them the contract at issue in this case. In
`2011, Boeing permissibly changed multiple cost accounting
`practices simultaneously; some of the changes raised costs
`to the government, whereas others lowered costs to the gov-
`ernment. In late 2016, the Defense Contract Management
`Agency, invoking Federal Acquisition Regulation (FAR)
`30.606, 48 C.F.R. § 30.606, determined the amount of the
`cost-increasing changes for the present contract and de-
`manded that Boeing pay the government that amount plus
`interest. Boeing began doing so.
`In 2017, Boeing filed an action in the Court of Federal
`Claims to seek recovery of the amounts thus paid, assert-
`ing that the government, in following FAR 30.606, commit-
`ted a breach of contract and effected an illegal exaction.
`Boeing’s core argument, applicable to both claims, is that,
`although FAR 30.606 undisputedly required the Defense
`Department to act as it did, that regulation is unlawful—
`principally because it is contrary to 41 U.S.C. § 1503(b)
`(and also for procedural reasons). According to Boeing,
`that provision of the Cost Accounting Standards (CAS)
`statute, which is incorporated into the contract at issue, re-
`quires that simultaneously adopted cost-increasing and
`cost-lowering changes in accounting practices be consid-
`ered as a group, with the cost reductions offsetting the cost
`increases. Boeing argues that, by following FAR 30.606’s
`command to disregard the cost-lowering changes and bill
`Boeing for the cost-increasing changes alone, the govern-
`ment unlawfully charged it too much.
`The trial court held that Boeing had waived its breach
`of contract claim by failing to object to FAR 30.606 before
`entering into the relevant contracts. Boeing Co. v. United
`
`

`

`Case: 19-2148 Document: 51 Page: 3 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`3
`
`States, 143 Fed. Cl. 298, 307–15 (2019). The trial court also
`determined that it lacked jurisdiction to consider Boeing’s
`illegal exaction claim because the claim was not based on a
`“money-mandating” statute. Id. at 303–07. We now re-
`verse and remand, concluding that the trial court misap-
`plied the doctrine of waiver and misinterpreted the
`jurisdictional standard for illegal exaction claims.
`I
`A
`The federal government has long entered into contracts
`under which amounts it pays to contractors are based on
`the contractors’ costs in performing the contracts. See, e.g.,
`Lockheed Aircraft Corp. v. United States, 375 F.2d 786 (Ct.
`Cl. 1967). In an effort to regularize cost-accounting prac-
`tices relevant to such contracts, the Office of Federal Pro-
`curement Policy Act Amendments of 1988 (the CAS Act)
`established the CAS Board within the Office of Federal
`Procurement Policy. Pub. L. 100-679, § 5, 102 Stat. 4055,
`4058–63 (1988) (originally codified at 41 U.S.C. § 422, but
`now codified at 41 U.S.C. §§ 1501–06). The CAS Act gave
`the Board “exclusive authority to prescribe, amend, and re-
`scind cost accounting standards.” 41 U.S.C. § 1502(a)(1).
`Standards promulgated by the Board are “mandatory for
`use by all executive agencies and by contractors and sub-
`contractors in estimating, accumulating, and reporting
`costs in connection with the pricing and administration of,
`and settlement of disputes concerning, all negotiated prime
`contract and subcontract procurements with the Federal
`Government in excess of the amount set forth in section
`2306a(a)(1)(A)(i) of title 10,” which refers to contracts
`worth more than $2 million. Id., § 1502(b)(1)(B); see 10
`U.S.C. § 2306a(a)(1)(A)(i).
`The CAS Act directed the Board to establish regula-
`tions “requir[ing] contractors and subcontractors as a con-
`dition of contracting with the Federal Government to . . .
`agree to a contract price adjustment, with interest, for any
`
`

`

`Case: 19-2148 Document: 51 Page: 4 Filed: 08/10/2020
`
`4
`
`THE BOEING COMPANY v. UNITED STATES
`
`increased costs paid to the contractor or subcontractor by
`the Federal Government because of a change in the con-
`tractor’s or subcontractor’s cost accounting practices.” 41
`U.S.C. § 1502(f). In accordance with that mandate, the
`Board promulgated FAR 9903.201-4, which requires con-
`tracting officers to insert, in each CAS-covered contract, a
`clause that “requires the contractor to comply with all CAS
`specified in [48 C.F.R. pt. 9904].” 48 C.F.R. § 9903.201-
`4(a)(2). The required clause states that “the provisions of
`[part] 9903 are incorporated herein by reference” and that
`a contractor shall “[c]omply with all CAS, including any
`modifications and interpretations indicated thereto con-
`tained in part 9904” as of certain times and “any CAS (or
`modifications to CAS) which hereafter become applicable
`to a contract.” 48 C.F.R. § 9903.201-4 (clause sections
`(a)(1) and (a)(3)). As relevant here, the clause also requires
`the contractor, upon making a “change to a cost accounting
`practice,” to “negotiate an equitable adjustment . . . .” Id.
`(clause section (a)(4)(iii)). Notably for purposes of this case,
`another regulation, FAR 52.230-2, provides for insertion of
`a clause that incorporates 48 C.F.R. part 9903 by reference
`and that otherwise is the same for present purposes as the
`clause set out in FAR 9903.201-4. See 48 C.F.R. § 52.230-
`2.
`
`An additional regulation, FAR 52.230-6, entitled “Ad-
`ministration of Cost Accounting Standards,” establishes a
`framework for determining the amount of an equitable ad-
`justment; as relevant here, it requires that every CAS con-
`tract contain a detailed clause addressed to that topic.
`48 C.F.R. § 52.230-6. Each relevant agency must appoint
`a “Cognizant Federal Agency Official” (CFAO), i.e., a con-
`tracting officer responsible for implementing CAS provi-
`sions that govern the agency’s contracts. 48 C.F.R.
`§ 52.230-6 (clause section (a)). In that role, the designated
`contracting officer coordinates the agency’s response to
`changes in cost accounting practices.
`
`

`

`Case: 19-2148 Document: 51 Page: 5 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`5
`
`A contractor must “[s]ubmit to the CFAO a description
`of any cost accounting practice change . . . and any written
`statement that the cost impact of the change is immate-
`rial.” Id., § 52.230-6 (clause section (b)). As relevant here,
`upon determining that a change complies with the CAS but
`is “undesirable,” the contracting officer must classify the
`change as “unilateral” and inform the contractor that “the
`Government will pay no aggregate increased costs.” Id.
`(clause section (a)). The contracting officer may request
`that the contractor submit a “general dollar magnitude
`(GDM) proposal” calculating the “cost impact” of the
`changes. See id. (clause section (c)(1)) (GDM proposal must
`be “in accordance with paragraph (d) or (g) of this clause”);
`id. (clause section (d)(1)) (“[T]he GDM proposal shall . . .
`[c]alculate the cost impact in accordance with paragraph (f)
`of this clause.”). For a unilateral change, the proposal must
`include an estimate of the “increased cost to the Govern-
`ment in the aggregate.” Id. (clause section (f)(2)(iv)).
`At the heart of this case is one further regulation,
`FAR 30.606, entitled “Resolving cost impacts.” 48 C.F.R.
`§ 30.606. Although FAR 52.230-6 and its required contract
`clause do not refer to FAR 30.606, it is undisputed that, in
`deciding how to deal with the cost impacts of changes, “the
`Government was required to follow FAR 30.606 when ad-
`ministering the Contract.” U.S. Br. at 45 (citing 41 U.S.C.
`§ 1121(c)(1)); id. (“FAR 30.606 is mandatory”); id. at 50
`(“We do not dispute that FAR 30.606 could not be waived,
`nor that contracting officers are precluded from granting
`such a waiver.”). FAR 30.606 gives the contracting officer
`discretion to “adjust[] a single contract, several but not all
`contracts, all contracts, or any other suitable method.”
`48 C.F.R. § 30.606(a)(2). But the regulation limits that dis-
`cretion in a respect central to the dispute in this case. It
`instructs the contracting officer not to “combine the cost
`impacts of . . . . [o]ne or more unilateral changes” “unless
`all of the cost impacts are increased costs to the govern-
`ment.” Id., § 30.606(a)(3)(ii)(A). As is undisputed, that
`
`

`

`Case: 19-2148 Document: 51 Page: 6 Filed: 08/10/2020
`
`6
`
`THE BOEING COMPANY v. UNITED STATES
`
`provision bars offsetting increases in costs from some
`changes with reductions in costs from others.
`Under FAR 52.230-6, if the contracting officer deter-
`mines that the unilateral, undesirable changes have
`caused an “aggregate increased cost,” the contractor must
`“[r]epay the Government” an amount equal to the aggre-
`gate increased cost. Id., § 52.230-6 (clause section (k)(2)).
`Any disagreement over repayment, the CAS statute de-
`clares, “will constitute a dispute under chapter 71 of this
`title,” i.e., a dispute under the Contract Disputes Act. 41
`U.S.C. § 1503(a); see id., §§ 7101–09.
`B
`From 1992 to 2015, Boeing, through its Fixed Wing Ac-
`counting Business Unit segment of its Defense, Space &
`Security division, entered into numerous contracts with
`the federal government. The contract at issue here is Con-
`tract No. N00019-09-C-0019 (the C19 contract), based on a
`solicitation issued by the Naval Air Systems Command and
`awarded in late 2008 to McDonnell Douglas Corporation,
`which was by then part of Boeing and has been treated by
`the parties as within Fixed Wing’s aegis. J.A. 404. The
`award recites an “amount” of roughly $67 million and
`states that the contract would be administered, on the gov-
`ernment’s side, by the Defense Contract Management
`Agency. Id. It is undisputed before us that the contract is
`governed by CAS. The contract incorporates various
`clauses either by reference or by full text. J.A. 1013–23;
`J.A. 405. The clauses set out in FAR 52.230-2 and 52.230-
`6 are among those incorporated; FAR 30.606 is not.
`J.A. 1013–23; J.A. 405.
`In October 2010, Boeing informed the Defense Contract
`Management Agency’s designated contracting officer that
`Fixed Wing was planning to implement simultaneously, on
`January 1, 2011, several changes to its cost accounting
`practices. The contracting officer deemed eight of those
`changes to be undesirable “unilateral changes,” designated
`
`

`

`Case: 19-2148 Document: 51 Page: 7 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`7
`
`the C19 contract as representative, and asked Boeing to
`submit a general magnitude dollar proposal. In its pro-
`posal, Boeing estimated that two changes—GT-2011-06
`and GT-2011-07—would increase the government’s costs
`by $888,000 ($940,007 after factoring in Boeing’s profits).
`But Boeing estimated that two other changes—GT-2011-
`04 and GT-2011-05—would save
`the government
`$2,284,000. Because the net effect of the changes was to
`save the government $1,396,000 ($1,489,000 after factor-
`ing in Boeing’s profits), Boeing duly contended that it need
`not make any payment because there was no “aggregate
`increased cost.” FAR 52.230-6(k)(2).
`On December 21, 2016, a Divisional Administrative
`Contracting Officer (DACO) of the Defense Contract Man-
`agement Agency determined, in a “Final Decision,” that
`Boeing owed the government $1,064,773. J.A. 67. She
`drew that conclusion by limiting her calculation to the
`“[t]wo of the eight changes . . . [that] materially . . . in-
`crease costs to the Government,” disregarding the other,
`cost-saving changes. J.A. 68. She ruled that Boeing had to
`pay the government $940,007, plus interest of $124,776
`(through December 2016). Id.; see also J.A. 64–65 (denying
`reconsideration). To fulfill that obligation, Boeing began
`paying the government $8,900 per month. J.A. 55.
`C
`On December 18, 2017, Boeing filed an action in the
`Court of Federal Claims under the Contract Disputes Act.
`See 41 U.S.C. § 7104(b) (“[I]n lieu of appealing the decision
`of a contracting officer under section 7103 of this title to an
`agency board, a contractor may bring an action directly on
`the claim in the United States Court of Federal Claims.”).
`Boeing alleged that the government breached the C19 con-
`tract, with its CAS-compliance clause, by failing to “nego-
`tiate an equitable adjustment,” FAR 9903.201-4,
`in
`accordance with the CAS statute. In particular, Boeing re-
`newed its argument that FAR 30.606, which forbids the
`
`

`

`Case: 19-2148 Document: 51 Page: 8 Filed: 08/10/2020
`
`8
`
`THE BOEING COMPANY v. UNITED STATES
`
`offsetting of cost increases and cost reductions from simul-
`taneous changes in cost accounting practices, is unlawful,
`including because it is counter to the CAS statute’s general
`rule that “[t]he Federal Government may not recover costs
`greater than the aggregate increased cost to the Federal
`Government,” 41 U.S.C. § 1503(b). See J.A. 57; see also
`J.A. 58 (arguing that FAR 30.606 was promulgated without
`“adequate notice and comment”). Alternatively, Boeing al-
`leged, the government’s “demand for payment,” “in direct
`violation of 41 U.S.C. § 1503(b),” was an “illegal exaction.”
`J.A. 60.
`Boeing filed a motion for judgment on the pleadings.
`The government opposed Boeing’s motion and filed its own
`cross-motions to dismiss (as to the illegal exaction claim)
`and for summary judgment (as to the contract claim). The
`trial court granted the government’s motions.
`The government’s argument on the contract claim was
`that, by failing to challenge the legality of FAR 30.606 be-
`fore entering into the C19 contract, Boeing had waived its
`breach of contract claim that depended on challenging FAR
`30.606 as unlawful. The trial court agreed, characterizing
`the asserted conflict between FAR 30.606 and the CAS
`statute as a “patent ambiguity in [Boeing’s] contract with
`the government.” Boeing, 143 Fed. Cl. at 309. The court
`ruled that “[b]ecause Boeing did not seek clarification, be-
`fore award, of the conflict it saw between the CAS statute,
`the CAS clause and FAR 30.606, its contract claims are
`foreclosed as a matter of law.” Id. at 310.
`The government’s argument on the illegal exaction
`claim was that jurisdiction under the Tucker Act, 28 U.S.C.
`§ 1491(a)(1), was lacking because the CAS Act, on which
`the allegation of illegality rested, is not a money-mandat-
`ing statute. The trial court agreed. Relying on Norman v.
`United States, 429 F.3d 1081 (Fed. Cir. 2005), the court
`stated that Boeing was required to “show that 41 U.S.C.
`§ 1503(b) is money-mandating to establish jurisdiction for
`
`

`

`Case: 19-2148 Document: 51 Page: 9 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`9
`
`its illegal exaction claim.” Boeing, 143 Fed. Cl. at 304. The
`court concluded that Boeing had not done so and, therefore,
`“the illegal exaction claim . . . must be dismissed for lack of
`subject matter jurisdiction.” Id. at 307.
`Boeing timely appealed. We have jurisdiction under 28
`U.S.C. § 1295(a)(3). We review the Court of Federal
`Claims’ legal conclusions de novo and its factual findings
`for clear error. Love Terminal Partners, L.P. v. United
`States, 889 F.3d 1331, 1340 (Fed. Cir. 2018).
`II
`Boeing contends that the trial court incorrectly ruled
`
`that Boeing waived its challenge to the lawfulness of
`FAR 30.606. We agree. Although Boeing advances several
`rationales for the inapplicability of waiver, we need not go
`beyond the following. A pre-award objection by Boeing to
`the Defense Department would have been futile, as the
`government concededly could not lawfully have declared
`FAR 30.606 inapplicable in entering into the contract. Our
`precedents do not require, to avoid waiver, that the con-
`tractor have pursued judicial avenues of relief before the
`award. To the extent that the government even urges
`adoption of such a requirement here, it has provided no
`sound basis for doing so in this case: it has not identified a
`judicial avenue through which a ruling on the merits of the
`objection was assuredly available. We therefore reverse
`the trial court’s waiver ruling.
`A
`The basis for waiver adopted by the trial court and de-
`
`fended by the government is what the government labels,
`on the first page of its brief to this court, “the Blue & Gold
`waiver rule,” referring to this court’s decision in Blue &
`Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir.
`2007). U.S. Br. at 1. In Blue & Gold, which involved a bid
`protest, we drew on precedents involving certain contract
`ambiguities and concluded: “a party who has the
`
`

`

`Case: 19-2148 Document: 51 Page: 10 Filed: 08/10/2020
`
`10
`
`THE BOEING COMPANY v. UNITED STATES
`
`opportunity to object to the terms of a government solicita-
`tion containing a patent error and fails to do so prior to the
`close of the bidding process waives its ability to raise the
`same objection subsequently in a bid protest action in the
`Court of Federal Claims.” Blue & Gold, 492 F.3d at 1313;
`see COMINT Systems Corp. v. United States, 700 F.3d
`1377, 1382 (Fed. Cir. 2012) (extending Blue & Gold to “sit-
`uations in which the protesting party had the opportunity
`to challenge a solicitation before the award and failed to do
`so”). More generally, we have ruled that a waiver exists in
`certain circumstances where contract terms contain a “pa-
`tent” ambiguity or defect, including an obvious omission,
`inconsistency, or discrepancy of significance, and the con-
`tractor or bidder who later challenges those contract terms
`in court had not properly raised the problem to the agency
`during the contract-formation process. See Inserso Corpo-
`ration v. United States, 961 F.3d 1343, 1349–52 (Fed. Cir.
`2020); K-Con, Inc. v. Sec’y of Army, 908 F.3d 719, 721–22
`(Fed. Cir. 2018); Per Aarsleff A/S v. United States, 829 F.3d
`1303, 1312 (Fed. Cir. 2016); E.L. Hamm & Assocs., Inc. v.
`England, 379 F.3d 1334, 1341 (Fed. Cir. 2004); Jowett, Inc.
`v. United States, 234 F.3d 1365, 1368 n.2 (Fed. Cir. 2000).
`
`Boeing argues against applicability of that doctrine to
`this case on several grounds. It argues, for example, that
`there was no contract defect or ambiguity because, whereas
`the contract includes certain clauses requiring compliance
`with the CAS statute, it does not include a clause requiring
`compliance with FAR 30.606. See supra p. 6; Boeing Br. at
`31–36. Boeing also contends that the doctrine is inapplica-
`ble where a challenge rests on a statute that is protective
`of the contractor and not primarily of the government, an
`exception that applies, Boeing says, to 41 U.S.C. § 1503(b).
`Boeing Br. at 46–52. We need not and do not reach either
`of those contentions. Instead, we address Boeing’s primary
`contention, Boeing Br. at 21–31, 37–45, and conclude that
`there was no waiver here because the government has not
`shown that Boeing bypassed an avenue of relief on the
`
`

`

`Case: 19-2148 Document: 51 Page: 11 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`11
`
`merits from the agency—indeed, has not even shown that
`Boeing bypassed a judicial forum that would adjudicate its
`contention on the merits.
`
`As already noted, the government here concedes that,
`when entering into the contract at issue, its adherence to
`FAR 30.606 was “mandatory,” “FAR 30.606 could not be
`waived,” and “contracting officers are precluded from
`granting such a waiver.” U.S. Br. at 45, 50. In other words,
`it is undisputed that, if Boeing had objected to FAR 30.606
`during the negotiations to enter into the contract, the
`agency would have had to reject the objection. The agency
`could not lawfully have given Boeing the relief of rejecting
`application of FAR 30.606 to the contract. See Oral Arg. at
`13:20–14:25 (government counsel stating that FAR 30.606
`is “not something that the contracting officer has discre-
`tion” to apply or not to apply).
`Under our cases, as the government seems to
`acknowledge at one point, it is what Boeing said or did not
`say to the agency before entering into the contract that mat-
`ters for purposes of the waiver doctrine. See U.S. Br. at 51
`(“Whether Boeing could have challenged FAR 30.606 in an-
`other forum through an APA action or through a pre-award
`bid protest is irrelevant to whether Boeing improperly
`stayed silent—before signing the Contract—on the pur-
`ported conflict between the regulation and the CAS.”). The
`government has not pointed to any precedent of this court
`under the contract waiver doctrine in which we have found
`waiver, or declared waiver to be available, despite the ina-
`bility of the agency itself to grant the relief that the party
`later sought in court. None of this court’s precedents on
`which the government relies in addressing Boeing’s pri-
`mary contention about contract waiver involved such a cir-
`cumstance; the government does not argue otherwise.1
`
`In the portions of its brief directed to the Boeing
`1
`argument we are addressing, the government cites K-Con,
`
`

`

`Case: 19-2148 Document: 51 Page: 12 Filed: 08/10/2020
`
`12
`
`THE BOEING COMPANY v. UNITED STATES
`
`The same is true of additional cases of ours on which the
`trial court relied in the corresponding portions of its opin-
`ion.2
`Notably, we emphasized the significance of the availa-
`bility of agency relief in one of the cases principally relied
`on by the government and the trial court, American Tele-
`phone & Telegraph Co. v. United States (AT&T II), 307
`F.3d 1374 (Fed. Cir. 2002). There, we held that AT&T had
`waived its challenge to the fixed-price nature of a
`$34.5 million contract. Id. at 1376. AT&T sought to reform
`the contract, invoking a regulation that, supporting
`AT&T’s position in court, directed agencies not to enter
`fixed-price contracts greater than $10 million. Id. We
`noted that the agency, in negotiating the contract, readily
`could have adopted the form of contract AT&T later sought
`in court. Id. at 1376, 1379. We concluded that “the proper
`time for AT&T to have raised the issues that it now
`
`
`supra; Per Aarsleff, supra; Blue & Gold, supra; E.L. Hamm,
`supra; American Telephone & Telegraph Co. v. United
`States, 307 F.3d 1374 (Fed. Cir. 2002) (AT&T II); Stratos
`Mobile Networks USA, LLC v. United States, 213 F.3d 1375
`(Fed. Cir. 2000); Whittaker Elec. Sys. v. Dalton, 124 F.3d
`1443 (Fed. Cir. 1997); United Int’l Investigative Servs. v.
`United States, 109 F.3d 734 (Fed. Cir. 1997); Cmty. Heating
`& Plumbing Co. v. Kelso, 987 F.2d 1575 (Fed. Cir. 1993);
`and Space Corp. v. United States, 470 F.2d 536 (Ct. Cl.
`1972). See U.S. Br. at 23, 31–33, 36, 41–43, 52.
`2
`In those portions of its opinion, the trial court cited,
`besides some of the cases cited supra n.1, Triax Pac., Inc.
`v. West, 130 F.3d 1469 (Fed. Cir. 1997); Statistica, Inc. v.
`Christopher, 102 F.3d 1577 (Fed. Cir. 1996); Interwest Con-
`str. v. Brown, 29 F.3d 611 (Fed. Cir. 1994); Newsom v.
`United States, 676 F.2d 647 (Ct. Cl. 1982); and E. Walters
`& Co. v. United States, 576 F.2d 362 (Ct. Cl. 1978). See
`Boeing, 143 Fed. Cl. at 309–10, 313–14.
`
`

`

`Case: 19-2148 Document: 51 Page: 13 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`13
`
`presents was at the time of the contract negotiation, when
`effective remedy was available.” Id. at 1381 (emphasis
`added).3
`Even more notably, where the agency, during contract-
`ing, could not have accepted the objection later raised by
`the plaintiff in court, we have rejected a government argu-
`ment for waiver precisely because of the disability. In GHS
`Health Maintenance Organization, Inc. v. United States
`(GHS II), we determined that a contractor had not waived
`its challenge to a regulation. 536 F.3d 1293, 1295 (Fed. Cir.
`2008). Noting that the contract contained the language of
`the regulation, the government argued that the contractor
`had consented to the regulation, and thereby waived its
`challenge, by signing the contract. Id. at 1306. We rejected
`this argument as “frivolous” on the simple ground that the
`regulation “was non-negotiable.” Id.
`
`
`In Blue & Gold, we held that Blue & Gold, a losing
`3
`bidder, waived the contention that the agency was required
`to include in the solicitation a requirement of compliance
`with an employee-pay statute, because Blue & Gold did not
`make that objection to the agency during the bidding pro-
`cess. In so ruling, we discussed an agency regulation rele-
`vant to whether Blue & Gold should have been aware of a
`general agency practice, but we did not suggest that the
`regulation barred the agency from including in the solicita-
`tion the requirement Blue & Gold later urged in court. In-
`deed, we noted that, after the award was made (to a rival
`bidder), the Park Service agreed to apply the statute to the
`contract, 492 F.3d at 1316, with no apparent change in the
`regulation. Blue & Gold, for its part, made no contrary con-
`tention; in fact, it stated that the regulation “nowhere men-
`tions the” statute “or clearly states” that the contract at
`issue was outside the statute. Reply Br. of Appellant at 8,
`Blue & Gold, 492 F.3d 1308 (Fed. Cir. 2007) (No. 06-5064),
`2006 WL 3243586.
`
`

`

`Case: 19-2148 Document: 51 Page: 14 Filed: 08/10/2020
`
`14
`
`THE BOEING COMPANY v. UNITED STATES
`
`GHS II cannot be disregarded as too abbreviated in its
`analysis, which is clear and to the point. It also is con-
`sistent with all the relevant precedent identified to us or of
`which we are aware. It reflects the contract waiver doc-
`trine’s origin in the policy of ensuring that two negotiating
`parties (whether private or governmental) do what they are
`able to do to clear up patent ambiguities or defects before
`formation, thus helping to reduce future litigation and al-
`lowing expeditious contract formation. See Blue & Gold,
`492 F.3d at 1313–15. In addition, with Blue & Gold having
`itself looked to “analogous” doctrines, id. at 1314, we note
`that GHS II aligns with the familiar “futility” exception to
`related requirements for preserving a challenge by first
`presenting the matter to an agency. See Shalala v. Illinois
`Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000);
`McCarthy v. Madigan, 503 U.S. 140, 147–48 (1992); Mon-
`tana Nat. Bank of Billings v. Yellowstone County, 276 U.S.
`499, 505 (1928).
`Under our case law, we conclude, there was no waiver.
`B
`GHS II does not specifically discuss whether waiver
`could be found where, though relief from the agency was
`not available, a contractor or bidder bypassed, during the
`contract-formation process, an opportunity for a judicial
`ruling on the merits of the objection later asserted in court.
`It is not clear, however, whether the government is con-
`tending that bypassing a judicial avenue of relief is a
`ground for waiver, generally or in this case. Compare U.S.
`Br. at 51 (“Whether Boeing could have challenged
`FAR 30.606 in another forum through an APA action or
`through a pre-award bid protest is irrelevant to whether
`Boeing improperly stayed silent—before signing the Con-
`tract—on the purported conflict between the regulation
`and the CAS.”) with id. at 36 n.12 (“Boeing had the choice
`to protest the terms of the solicitation—including a chal-
`lenge to FAR 30.606—or to raise its challenge in an [APA]
`
`

`

`Case: 19-2148 Document: 51 Page: 15 Filed: 08/10/2020
`
`THE BOEING COMPANY v. UNITED STATES
`
`15
`
`claim.”) and Oral Arg. at 14:25–18:45 (government urging
`that Boeing should have sought judicial relief before enter-
`ing into contract). Accordingly, we explain here only why
`the government’s argument along these lines falls short of
`justifying any expansion of the waiver doctrine to support
`a waiver in this case.
`We do not decide whether failure to pursue a judicial
`remedy could ever support a determination of waiver in the
`contract context. We decide merely that we will not create
`such a new basis for waiver where the government has not
`identified a judicial forum in which the plaintiff would
`clearly have been entitled, during the contract-formation
`process, to obtain a ruling on the merits of the objection it
`has raised in its later contract case. This conclusion re-
`flects the general principle that forfeiture involves a “fail-
`ure to make timely assertion of the right before a tribunal
`having jurisdiction to determine it.” Yakus v. United
`States, 321 U.S. 414, 444 (1944) (emphasis added); see
`United States v. Olano, 507 U.S. 725, 731 (1993) (reiterat-
`ing Yakus statement of forfeiture principle).
`The government mentions just two possible paths Boe-
`ing might have taken in court during contract formation:
`an action under the APA, 5 U.S.C. §§ 702, 704, and a bid
`protest action, 28 U.S.C. § 1491(b)(1). U.S. Br. 36 n.12, 51.
`But the government never asserts, let alone establishes,
`that Boeing would have been entitled to a ruling on the
`merits of its challenge to FAR 30.606 had it pursued either
`of those paths in 2008, when the contract at issue was ne-
`gotiated. There are evident reasons to doubt any such en-
`titlement, but the government has not meaningfully
`addressed such obstacles, saying no more than that it was
`up to Boeing to try to secure judicial relief. That response
`is inadequate for the government to meet its burden to es-
`tablish a waiver through failure to seek judicial relief here,
`even if we assume (without deciding) that such a failure
`could support a contract-waiver holding in other situations.
`
`

`

`Case: 19-2148 Document: 51 Page: 16 Filed: 08/10/2020
`
`16
`
`THE BOEING COMPANY v. UNITED STATES
`
`Without being comprehensive, we briefly identify some of
`the apparent obstacles, which are related to each other.
`The CAS statute expressly provides that judicial reso-
`lution of disputes over “contract price adjustment[s]” shall
`take place under the Contract Disputes Act (CDA),
`41 U.S.C. §§ 7101–09. 41 U.S.C. § 1502(a). That descrip-
`tion fits Boeing’s challenge: Boeing and the government
`disagree about the proper contract price adjustment to re-
`flect Boeing’s post-contract-formation 2011 changes in its
`cost accounting practices. The government accepts that a
`pre-formation action would be outside the CDA. See U.S.
`Br. 52–53 (stating that “to raise a CDA claim Boeing must
`first have a contract”) (citing 41 U.S.C. § 7102(a)). Yet the
`government has not explained how the statutory routing of
`the particular dispute in this matter to the CDA leaves
`open an alternative, non-CDA, pre-formation route of judi-
`cial relief. Cf. Thunder Basin Coal Co. v. Reich, 510 U.S.
`200, 207 (1994) (ruling that a “detailed structure for re-
`viewing violations” of a statutory provision or regulation
`precluded a “pre-enforcement challenge”); Seminole Tribe
`of Fla. v. Florida, 517 U.S. 44, 74–75 (1996) (statutory
`scheme precludes Ex parte Young action); Schweiker v.
`Chilicky, 487 U.S. 412, 422–23 (1988) (statutory scheme
`precludes Bivens action).
`The CAS statute specifically addresses the APA. In 41
`U.S.C. § 1502(g), the statute declares that “[f]unctions ex-
`ercised under this chapter are not subject to sections 551,
`553 to 559, and 701 to 706 of title 5,” there