Triple Canopy, Inc. v. Secretary of the Air Force

Case: 20-2165 Document: 46 Page: 1 Filed: 09/29/2021

United States Court of Appeals
for the Federal Circuit
______________________

TRIPLE CANOPY, INC.,
Appellant

v.

SECRETARY OF THE AIR FORCE,
Appellee
______________________

2020-2165
______________________

Appeal from the Armed Services Board of Contract Ap-
peals in Nos. 61415, 61416, 61417, 61418, 61419, 61420,
Administrative Judge Kenneth David Woodrow, Adminis-
trative Judge Owen C. Wilson, Administrative Judge Rich-
ard Shackleford.
______________________

Decided: September 29, 2021
______________________

JONATHAN DAVID SHAFFER, Smith, Pachter,
McWhorter, PLC, Vienna, VA, argued for appellant. Also
represented by TODD MATTHEW GARLAND, RICHARD C.
JOHNSON, Tysons Corner, VA.

NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellee. Also represented by JEFFREY
B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., PATRICIA M.
MCCARTHY.
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2 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

______________________

Before NEWMAN, SCHALL, and DYK, Circuit Judges.
SCHALL, Circuit Judge.
Triple Canopy, Inc. (“Triple Canopy”), appeals the de-
cision of the Armed Services Board of Contract Appeals
(“Board”) that denied six consolidated appeals brought by
Triple Canopy under the Contract Disputes Act of 1978,
41 U.S.C. § 7101 et seq. (“CDA”). Triple Canopy, Inc.,
ASBCA Nos. 61415, 61416, 61417, 61418, 61419, 61420,
20-1 BCA ¶ 37,675. The Board denied the appeals after
concluding that the claims asserted in them were time-
barred because they were not submitted to the contracting
officer within six years of when they accrued, as required
by 41 U.S.C. § 7103(a)(4)(A). Because we conclude that the
Board erred as a matter of law in determining when Triple
Canopy’s claims accrued, we reverse and remand.
BACKGROUND
I.
Triple Canopy is a private security company (“PSC”).
Its appeal arises out of its performance of six separate,
fixed-price contracts for security services in Afghanistan.
The contracts were awarded during the period March 15,
2009, through September 17, 2010. Triple Canopy, 20-1
BCA ¶ 37,675 at 182,894. The contracts were awarded by
the Department of Defense, through the Combined Joint
Special Operations Task Force-Afghanistan (“CJSOTF-A”).
Id. Each of the contracts required that Triple Canopy com-
ply with local law and incorporated Federal Acquisition
Regulation (“FAR”) 52.229-6, Taxes—Foreign Fixed-Price
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 3

Contracts (June 2003) (“Foreign Tax Clause”). 1 Id. That
FAR provision provides in relevant part, as follows:
[T]he contract price shall be increased by the
amount of any after-imposed tax or of any tax or
duty specifically excluded from the contract price
by a provision of this contract that the Contractor
is required to pay or bear, including any interest or
penalty, if the Contractor states in writing that the
contract price does not include any contingency for
such tax and if liability for such tax, interest, or
penalty was not incurred through the Contractor’s
fault, negligence, or failure to follow instructions of
the Contracting Officer or to comply with the pro-
visions of paragraph (i) below.
....
(i) The Contractor shall take all reasonable action
to obtain exemption from or refund of any taxes or
duties, including interest or penalty, from which
the United States Government, the Contractor, any
subcontractor, or the transactions or property cov-
ered by this contract are exempt under the laws of
the country concerned or its political subdivisions
or which the governments of the United States and
of the country concerned have agreed shall not be
applicable to expenditures in such country by or on
behalf of the United States.
FAR § 52.229-6(d)(1), -6(i).
II.
In February of 2008, the Government of the Islamic Re-
public of Afghanistan (“GIRA”) issued a directive entitled
“Procedure for Regulating Activities of Private Security

1 The FAR is codified in title 48 of the Code of Fed-
eral Regulations. For brevity, we refer to the FAR without
corresponding C.F.R. citations.
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4 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

Companies in Afghanistan” (“PSC Regulation”). Triple
Canopy, 20-1 BCA ¶ 37,675 at 182,893. Article 7 of the
PSC Regulation required all PSCs to observe Afghan law,
including the PSC Regulation itself. Id. Article 10 of the
PSC Regulation provided: “The number of staff of each Se-
curity Company shall not be more the [sic] 500 people, un-
less the Council of Ministers agrees an increased number
of staff.” Id. Although the PSC Regulation limited the
number of PSC personnel to 500, the regulation did not pro-
vide for the imposition of fees or penalties on PSCs operat-
ing in Afghanistan that exceeded the 500-person limit.
On August 13, 2010, the contracting officer (“CO”), Air
Force Captain Brussell C. Bungay, sent a letter to Afghan-
istan’s Ministry of Interior (“MOI”) on behalf of the Depart-
ment of Defense. Corrected Joint Appendix (“J.A.”)
282–83. In the letter, the CO informed the MOI that “Tri-
ple Canopy’s manning requirement in support of US Mili-
tary contracts will exceed 500 personnel.” Id. at 283. 2 The
CO stated:
In order to ensure there is no disruption to Afghan-
istan’s reconstruction process, the CJSOTF-A [ ] re-
spectfully requests an exemption excepting from
the 500 allowable security staff, for the above ref-
erenced contracts. It is understood and expected
that Triple Canopy will still be required to abide by
all other relevant laws and regulations as a li-
censed Private Security Company.
Id. The CO further stated: “This exemption shall be con-
sidered immediately valid by both [ ] CJSOTF-A and Triple
Canopy.” Id. On August 16, 2010, Triple Canopy

2 Although none of the individual contracts required
that Triple Canopy supply more than 500 personnel, the
contracts combined required it to provide more than the
500 personnel specified by Article 10 of the PSC Regula-
tion. Triple Canopy, 20-1 BCA ¶37,675 at 182,894.
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 5

submitted the CO’s letter to the MOI in support of its re-
quest that the MOI issue it a formal exemption with re-
spect to the 500-person limit. Triple Canopy, 20-1 BCA
¶ 37,675 at 182,895.
On March 15, 2011, GIRA issued Presidential Directive
No. 7339 (“PD7339”). Id. PD7339 required that all PSCs
operating in Afghanistan pay a fee of 100,000 Afghan Af-
ghani (“AFN”) (Afghan currency), a sum equal to $2,323.42
at that time, for each person over the 500-employee cap and
250,000 AFN ($5,808.56) for each foreign national working
without an Afghan visa. Id.
On March 24, 2011, GIRA implemented PD7339 by as-
sessing “penalties” for each individual Triple Canopy em-
ployed over the 500-person limit. J.A. 429. The penalties
were assessed against Triple Canopy’s total number of per-
sonnel across all of its contracts. Triple Canopy, 20-1 BCA
¶ 37,675 at 182,895. The assessment totaled 37,860,000
AFN ($879,647.95). 3 GIRA directed Triple Canopy to pay
the assessment within 15 days. J.A. 429. GIRA informed
Triple Canopy, however, that if it objected to the assess-
ment, it could provide its “reasoning in writing” within two
weeks. Id. 4
On March 27 and 28, 2011, representatives of the De-
partment of Defense again issued memoranda to GIRA

3 The penalties assessed included 24,900,000 AFN
for 204 people exceeding the 500-person cap, including
7,500,000 AFN for 30 foreign nationals working without
Afghan visas. The assessment also included additional
penalties of 12,960,000 AFN relating to weapons registered
by Triple Canopy. J.A. 429.
4 The Board, see Triple Canopy, 20-1 BCA ¶37,675
at 182,895, and the parties, see Appellant’s Br. 10 and Ap-
pellee’s Br. 6, all are of the view that the March 24, 2011
GIRA assessment gave Triple Canopy the right to appeal
the assessment. We agree.
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6 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

requesting that Triple Canopy be exempted from the 500-
person limit “to ensure there is no disruption to Afghani-
stan’s reconstruction process.” Triple Canopy, 20-1 BCA
¶ 37,675 at 182,895; J.A. 430–34.
Triple Canopy formally appealed the assessment on
April 8, 2011. Triple Canopy, 20-1 BCA ¶ 37,675 at
182,895. In its appeal, Triple Canopy indicated it had first
sought an exemption with respect to the 500-person limit
in August of 2010 and that it was waiting for the MOI’s
High Coordination Board and Council of Ministers to ap-
prove its request to maintain up to 1,000 personnel in Af-
ghanistan. J.A. 435, 438–39. Thereafter, on April 21,
2011, Triple Canopy informed the CO that it would submit
requests for equitable adjustments if its appeal of the
March 24 assessment was denied. Triple Canopy,
20-1 BCA ¶ 37,675 at 182,895.
On July 6, 2011, GIRA sent a letter to Triple Canopy
adjusting the total penalty assessed in its March 24 letter.
Id. The total penalty assessed was reduced to 18,550,000
AFN ($430,994.97). Id. 5 On July 18 and 20, 2011, Triple
Canopy paid the reduced assessment. Id. at 182,896.
III.
On June 6, 2017, within six years of both GIRA’s letter
of July 6, 2011, and Triple Canopy’s payment of the re-
duced assessment on July 18 and 20, 2011, Triple Canopy
submitted claims to the CO under each of the six CJSOTF-
A contracts. Triple Canopy, 20-1 BCA ¶ 37,675 at 182,896.
In its claims, Triple Canopy sought reimbursement under
the Foreign Tax Clause for the penalties it had paid to

5 The July 6 letter assessed a penalty of 100,000
AFN per person for 174 Afghan nationals and four foreign
nationals and a penalty of 250,000 AFN per person for
three additional foreign nationals working without Afghan
visas. J.A. 446–47. The letter did not assess any penalty
for weapons. Id.
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 7

GIRA allocable to each contract. See id. On November 20,
2017, after the CO failed to issue a final decision, Triple
Canopy’s claims were deemed denied. See 41 U.S.C.
§ 7103(a)(3), (f)(5); FAR § 33.211(a)(4), (g). Triple Canopy
then appealed to the Board.
As noted above, the Board denied Triple Canopy’s ap-
peals on the grounds that the asserted claims were time-
barred because they were not submitted to the CO within
six years of the date they accrued, as required by 41 U.S.C.
§ 7103(a)(4)(A).
Although the CDA does not define claim accrual, the
FAR does. The FAR defines “[a]ccrual of a claim” as “the
date when all events, that fix the alleged liability of either
the Government or the contractor and permit assertion of
the claim, were known or should have been known. For
liability to be fixed, some injury must have occurred. How-
ever, monetary damages need not have been incurred.”
FAR 33.201.
The Board began its analysis as to when Triple Can-
opy’s claims accrued by observing that, to determine when
the claims accrued and when the events that fixed the gov-
ernment’s alleged liability were known, it was required to
examine the legal basis for the claims. The legal basis for
Triple Canopy’s claims, the Board determined, was FAR
52.229-6, the Foreign Tax Clause provision noted above
that was incorporated into each of Triple Canopy’s
CJSOTF-A contracts. As seen, that provision provides, in
relevant part, that “the contract price shall be increased by
the amount of any after-imposed tax or of any tax or
duty . . . that the Contractor is required to pay or bear, in-
cluding any interest or penalty . . . if liability for such tax,
interest, or penalty was not incurred through the Contrac-
tor’s . . . failure . . . to comply with the provisions of para-
graph (i) below.” FAR 52.229-6(d)(1). The Board stated
that, if it accepted Triple Canopy’s contention that the
GIRA assessment was an “after-imposed tax,” then Triple
Canopy’s “legal obligation to pay the assessment [arose]
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8 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

when Triple Canopy [was] ‘required to pay or bear’ the as-
sessment.” Triple Canopy, 20-1 BCA ¶ 37,675 at 182,896.
Noting that there was “no dispute that GIRA demanded
payment of the assessment on March 24, 2011,” id., the
Board reasoned that Triple Canopy “knew it was obligated
to pay the GIRA assessment when it received GIRA’s de-
mand letter” on March 24, 2011, id. at 182,897. Thus, in
the Board’s view, the claims accrued on March 24, 2011,
more than six years before they were submitted to the CO
on June 6, 2017.
In its decision, the Board rejected Triple Canopy’s ar-
gument that its claims did not accrue until it paid the re-
vised penalty assessments on July 18 and 20, 2011. In so
doing, the Board agreed with the government that Triple
Canopy’s obligation to pay the penalties was fixed on
March 24, 2011, when GIRA assessed the penalties. The
Board stated that “[o]nce Triple Canopy became legally ob-
ligated to pay the assessment, the costs were incurred. The
fact that the final amount could change does not matter,
nor does the fact that actual payment had not yet oc-
curred.” Id. (first citing Gray Pers., Inc., ASBCA No. 54652,
06-02 BCA ¶ 33,378 at 165,476; then citing McDonnell
Douglas Servs., Inc., ASBCA No. 56568, 10-1 BCA ¶ 34,325
at 169,528).
The Board also rejected Triple Canopy’s argument that
its claims under the contracts did not accrue until it ex-
hausted its appeal right because it was required to do so
under paragraph (i) of the Foreign Tax Clause. In so hold-
ing, the Board distinguished Kellogg Brown & Root Ser-
vices, Inc. v. Murphy, 823 F.3d 622 (Fed. Cir. 2016). There,
we stated that the CDA limitations period “does not begin
to run if a claim cannot be filed because mandatory pre-
claim procedures have not been completed.” Id. at 628. In
Kellogg Brown, the Army repeatedly told contractor KBR
that it had to resolve its disputed costs with its subcontrac-
tor before KBR could present a claim for reimbursement of
those costs. Consequently, in Kellogg Brown, we held that
KBR’s claim accrued only after it had resolved the disputed
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 9

costs with its subcontractor and KBR had received a claim
from its subcontractor. Id. at 628–29. After contrasting
the facts of Kellogg Brown with the circumstances of Triple
Canopy’s claims, the Board stated: “[W]e conclude that the
process of appealing the fine levied on Triple Canopy was
not mandatory, but was rather an optional process Triple
Canopy elected to undergo in order to potentially reduce
the amount of the fine . . . . Therefore, the appeal process
did not toll the statute of limitations.” Triple Canopy,
20-1 BCA ¶ 37,675 at 182,898.
Having found that each of Triple Canopy’s claims was
submitted more than six years after it had accrued, the
Board denied each of Triple Canopy’s appeals as time
barred. Following the Board’s denial of its appeals, Triple
Canopy timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(10).
DISCUSSION
I.
Pursuant to 41 U.S.C. § 7107(b)(1), we review the
Board’s decisions on questions of law de novo. Parsons
Glob. Servs., Inc. v. McHugh, 677 F.3d 1166, 1170 (Fed. Cir.
2012). Interpretation of a government contract and inter-
pretation of applicable procurement regulations are ques-
tions of law subject to de novo review. Forman v. United
States, 329 F.3d 837, 841 (Fed. Cir. 2003); Reflectone, Inc.
v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc).
II.
On appeal, Triple Canopy argues that the Board erred
in ruling that its claims accrued when GIRA assessed it
penalties on March 24, 2011. As noted above, FAR 33.201
provides that a claim accrues “when all events, that fix the
alleged liability of either the Government or the contractor
and permit assertion of the claim, were known or should
have been known. For liability to be fixed, some injury
must have occurred. However, monetary damages need
not have been incurred.” Triple Canopy contends that, as
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10 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

of March 24, 2011, all events that fixed its liability had not
occurred. Noting that its six contracts were fixed-price con-
tracts, Triple Canopy argues that it had no right to seek an
adjustment of the contract prices unless contract provi-
sions granted it that right. As it did before the Board, Tri-
ple Canopy points to the Foreign Tax Clause as such a
provision and argues that no claims accrued under that
clause until it complied with paragraph (i) of the clause,
which required that it “take all reasonable action to obtain
exemption from or refund of any taxes or duties.” FAR
52.229-6(i). Triple Canopy posits that this meant it had to
appeal the GIRA assessment before it could submit claims
under the clause. Hence, Triple Canopy reasons its claims
did not accrue until GIRA ruled on its appeal. See Appel-
lant’s Br. 13, 20–26.
The government responds that the Board correctly held
that Triple Canopy’s claims accrued on March 24, 2011, the
date on which GIRA assessed Triple Canopy penalties for
violating its directive limiting the number of personnel
PSCs could employ in Afghanistan. The government states
that March 24 was the date when Triple Canopy knew it
was obligated to pay the GIRA assessment. It was at that
point, the government argues, that “all events had taken
place that fixed purported liability under the FAR provi-
sion at issue, and Triple Canopy knew or should have
known that they had taken place.” Appellee’s Br. 13–14.
The government also urges us to reject Triple Canopy’s
argument that its claims did not accrue until the GIRA ap-
peal process was completed. The government contends
that paragraph (i) of the Foreign Tax Clause did not set
forth a mandatory pre-claim procedure that prevented sub-
mission of the claims as of March 24, 2011. The govern-
ment notes that paragraph (i) only requires a contractor to
take “all reasonable action to obtain exemption” from “any
taxes” or “penalt[ies],” and it states that this requirement
is only triggered when the contractor is “exempt under the
laws of the country concerned.” Appellee’s Br. 20, quoting
FAR 52.229-6(i). According to the government, Triple
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 11

Canopy has failed, both before the Board and now on ap-
peal, to identify a legal basis for its claimed exemption from
the 500-person limit. Id. The government states that be-
cause Triple Canopy is a PSC and because there is no dis-
pute that it had more than 500 personnel in the country at
the time of GIRA’s penalty assessment, it “was not required
to take any additional action with . . . GIRA by pursuing a
legal exemption that did not exist, and the [B]oard properly
found that such a process was not mandatory.” Id. In other
words, the government contends that because Triple Can-
opy could not qualify for an exemption from the GIRA di-
rective, paragraph (i) of the Foreign Tax Clause did not
apply. Thus, Triple Canopy was not required to appeal
GIRA’s assessment. Finally, the government argues that
the plain language of FAR 52.229-6 does not dictate that a
contractor must take its “reasonable action” seeking an ex-
emption prior to submitting a claim under the CDA. The
government concludes that Triple Canopy’s appeal does not
present the situation addressed in Kellogg Brown, where a
claim could not be filed “because mandatory pre-claim pro-
cedures [had] not been completed.” Appellee’s Br. 21 (quot-
ing Kellogg Brown, 823 F.3d at 628).
In the alternative, the government urges us to affirm
the Board’s decision on the ground that Triple Canopy
failed to establish entitlement to a contract adjustment un-
der FAR 52.229-6(d). That is, the government argues that
we should find that Triple Canopy did not establish that
the GIRA’s assessment constituted a “tax” requiring a con-
tractual adjustment pursuant to the Foreign Tax Clause.
Id. at 11, 28–33.
III.
We have stated that “when a CDA claim accrued is de-
termined in accordance with the FAR, the conditions of the
contract, and the facts of the particular case.” Kellogg
Brown, 823 F.3d at 626 (citing Parsons Glob. Servs.,
677 F.3d at 1170). In our view, the FAR, the conditions of
Triple Canopy’s CJSOTF-A contracts, and the facts of the
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12 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

case compel the conclusion that Triple Canopy’s claim did
not accrue until its appeal of the GIRA assessments was
decided on July 6, 2011.
We begin with the governing FAR provision. Pursuant
to FAR 33.201, a contractor’s claim accrues “when all
events, that fix the alleged liability of . . . the contractor
and permit assertion of the claim, were known or should
have been known. For liability to be fixed, some injury
must have occurred. However, monetary damages need
not have been incurred.”
We turn next to “the conditions of the contract” and
“the facts of the particular case.” As seen, the relevant con-
tract provision is the Foreign Tax Clause, which was con-
tained in each of Triple Canopy’s six contracts.
Paragraph (d) of the clause provides in relevant part that
“the contract price shall be increased by the amount of any
after-imposed tax or of any tax or duty . . . that the Con-
tractor is required to pay or bear, including any interest or
penalty . . . if liability for such tax, interest, or penalty was
not incurred through the Contractor’s . . . failure . . . to
comply with the provisions of paragraph (i) below.” Para-
graph (i) provides in relevant part that “[t]he Contractor
shall take all reasonable action to obtain exemption
from . . . any taxes or duties, including interest or penalty,
from which the United States Government, the Contractor,
any subcontractor, or the transactions or property covered
by this contract are exempt under the laws of the country
concerned.”
We agree with Triple Canopy that, because it was seek-
ing reimbursement of the GIRA assessment pursuant to
the Foreign Tax Clause, it had to comply with para-
graph (i)’s requirement that it “take all reasonable action”
to obtain “exemption” from the assessment. This meant
appealing the assessment. In the circumstances of this
case, we thus view the appeal to GIRA as a “mandatory pre-
claim procedure” that had to be completed in order for Tri-
ple Canopy’s claims to accrue and the CDA limitations
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 13

period to begin to run. Kellogg Brown, 823 F.3d at 628; cf.
Electric Boat Corp. v. Sec’y of the Navy, 958 F.3d 1372, 1376
(Fed. Cir. 2020) (quoting Kellogg Brown but noting that
“the contract [at issue] did not require that Electric Boat
undertake any such procedures”).
We are unable to agree with the Board and the govern-
ment that Triple Canopy’s obligation to pay the assessment
was fixed on March 24, 2011, when GIRA first assessed the
penalties. Triple Canopy, 20-1 BCA ¶ 37,675 at 182,897.
The problem with the Board’s conclusion is that it over-
looks the requirement of paragraph (i) of the Foreign Tax
Clause that Triple Canopy “take all reasonable action” to
obtain an exemption from the penalties.
The Board dismissed Triple Canopy’s argument that,
pursuant to paragraph (i) of the Foreign Tax Clause, it was
required to appeal the GIRA penalty assessment before
submitting its claims to the CO. We disagree. We think
the structure and language of the Foreign Tax Clause de-
feats any suggestion that, in this case, pursuing an appeal
of the GIRA assessment before Triple Canopy submitted its
claims to the CO was optional. The Department of Defense
repeatedly requested an exemption from GIRA on behalf of
Triple Canopy and indicated that such an exemption would
be “considered immediately valid” by the Department of
Defense and Triple Canopy. Id. at 182,894–95. Having
been informed by the Department of Defense that it was
considered to have a “valid” “exemption” from the 500-per-
son limit, Triple Canopy could not properly disregard par-
agraph (i)’s requirement that it “take all reasonable action”
and not appeal the GIRA assessment, and still be eligible
for reimbursement under the Foreign Tax Clause for the
“penalties” that were assessed against it.
In our view, Kellogg Brown is controlling. It is true
that, in Kellogg Brown, the Army repeatedly told contrac-
tor KBR that it had to resolve its disputed costs with its
subcontractor before KBR could submit a claim for reim-
bursement of those costs. 823 F.3d at 628. It also is true
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14 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

that in this case there are no similar statements by the CO
with respect to Triple Canopy appealing the GIRA assess-
ment. Nevertheless, we have no difficulty concluding that,
in view of paragraph (i) of the Foreign Tax Clause and the
Department of Defense’s repeated assurances that Triple
Canopy was considered to have a valid exemption from the
500-person limit, it was proper for Triple Canopy to con-
clude that appealing the GIRA assessment was a “manda-
tory pre-claim procedure[ ],” id., and that it should act
accordingly. That meant appealing the GIRA assessment
before submitting its claims to the CO. See Crown Coat
Front Co. v. United States, 386 U.S. 503, 510–12, 514
(1967) (pre-CDA case, finding that a government contrac-
tor’s claim “first accrued” for purposes of the statute of lim-
itations “upon the completion of the administrative
proceedings contemplated and required by the provisions
of the contract” rather than at the time of the contract’s
completion). 6
In its decision, the Board relied upon Gray Personnel,
Inc., ASBCA No. 54652, 06-02 BCA ¶ 33,378, and McDon-
nell Douglas Services, Inc., ASBCA No. 56568, 10-1 BCA
¶ 34,325, in concluding that Triple Canopy’s obligation to
pay the GIRA assessment was fixed on March 24, 2011. In
Gray Personnel, the Board addressed the requirement of
FAR 33.201 that “some injury” must have occurred in ad-
dressing whether Gray needed to have completed the gov-
ernment’s delivery order or the contract for liability to be
“fixed” and, accordingly, for Gray’s claim to have accrued.

6 At the end of its decision, in addressing an argu-
ment by Triple Canopy that it could not properly submit a
claim to the CO while simultaneously appealing the GIRA
assessment, the Board stated: “[P]ursuant to [the Foreign
Tax Clause], Triple Canopy had a duty . . . to challenge the
amount of the fine.” Triple Canopy, 20-1 BCA ¶37,675 at
182,898. We agree with this statement, which is consistent
with our conclusion above.
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 15

06-02 BCA ¶ 33,378 at 165,476. The Board concluded that
Gray need not have completed the delivery order or con-
tract, stating that “[t]he CDA permits contractors to sub-
mit claims before they have incurred the total costs
relating to the claim.” Id. In reaching this conclusion, the
Board noted Congress’s intent that “contractors . . . submit
claims as soon as they are identified.” Id. (quoting
Servidone Constr. Corp. v. United States, 931 F.2d 860, 863
(Fed. Cir. 1991)). In McDonnell Douglas, the Board deter-
mined that the government was “on notice of, was aware
of, or should have been aware of, its potential defective
pricing claim against the prime contractor” more than six
years before two contracting officers’ decisions issued in
June 2008 that asserted the claim. 10-1 BCA ¶ 34,325
at 169,529. The Board rejected the government’s argu-
ment that its earliest possible claim accrual date was the
date on which it received a final prime contractor audit be-
cause prior to that it did not know the “sum certain” for
which McDonnell was allegedly liable. Id. at 169,527–28.
In both Gray Personnel and McDonnell Douglas, therefore,
the relevant point in time for purposes of determining
when liability was fixed was when the claimant became
aware of, or should have been aware of, its potential claim,
even if the amount of the claim had not been fixed. See
Triple Canopy, 20-1 BCA ¶ 37,675 at 182,897.
We are not bound by Board decisions. See Raytheon
Co. v. United States, 747 F.3d 1341, 1352 (Fed. Cir. 2014).
In any event, in view of the requirements of paragraph (i)
of the Foreign Tax Clause, and the Department of De-
fense’s repeated requests to GIRA that Triple Canopy be
exempt from the 500-person limit of Article 10 of the PSC
Regulation, Gray Personnel and McDonnell Douglas
clearly are distinguishable from this case.
We also are not persuaded by the government’s addi-
tional arguments on appeal. The government takes the po-
sition that paragraph (i) of the Foreign Tax Clause only
requires a contractor to “take all reasonable action to ob-
tain exemption” from a tax or penalty. As noted, the
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16 TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE

government states that Triple Canopy has never identified
a legal basis for its claimed exemption. The government
also argues that because it is undisputed that Triple Can-
opy had more than 500 personnel in the country at the time
of the penalty assessment, Triple Canopy was not obligated
to “pursu[e] a legal exemption that did not exist.” Appel-
lee’s Br. 20.
We do not agree. We do not see how it can be argued
that, in its appeal to GIRA, Triple Canopy failed to claim a
legal exemption from the GIRA penalty. Triple Canopy
first sought an exemption with respect to the 500-person
limit in August of 2010. Triple Canopy, 20-1 BCA ¶ 37,675
at 182,895. Thereafter, in its GIRA appeal, Triple Canopy
expressly referenced the Department of Defense’s August
2010 communication to the MOI. See J.A. 438–39. As seen,
in that communication the CO stated that the Department
of Defense was requesting an exemption from the 500-per-
son limit to ensure that there was “no disruption to Afghan-
istan’s reconstruction process.” J.A. 283. In our view,
seeking an exemption from the 500-person limit in order to
prevent disruption to Afghanistan’s reconstruction process
was tantamount to asserting a legal basis for the purpose
of securing an exemption, regardless of the number of em-
ployees Triple Canopy presently had in the country. More-
over, we think it was reasonable for Triple Canopy to take
the position that it was exempt “under the laws of the coun-
try concerned,” pursuant to paragraph (i) of the Foreign
Tax Clause, because the United States Department of De-
fense had repeatedly requested an exemption that was
“considered immediately valid,” and because Triple Canopy
had not received notice from the High Coordination Board
that its exemption request had been denied. Significantly,
while the contractor’s appeal did not result in an exemp-
tion, it did result in a substantial reduction of the assess-
ment. The government’s suggestion that the appeal was
somehow meritless is difficult to fathom. It would hardly
serve the government’s interest for the contractor to forego
an appeal that substantially benefited the government.
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TRIPLE CANOPY, INC. v. SECRETARY OF THE AIR FORCE 17

CONCLUSION
For the foregoing reasons, we hold that Triple Canopy’s
claims under the six contracts did not accrue until July 6,
2011, the date GIRA issued its decision in response to Tri-
ple Canopy’s April 8, 2011 appeal. Triple Canopy’s claim
submission to the CO on June 6, 2017 was thus within the
six-year CDA limitations period. The Board therefore
erred as a matter of law in denying Triple Canopy’s appeal.
The decision of the Board is reversed, and Triple Canopy’s
appeal is remanded to the Board for proceedings on the
merits. 7
REVERSED AND REMANDED
COSTS
Costs to Triple Canopy.

7 As noted, the government urges us to hold that Tri-
ple Canopy did not establish that GIRA’s assessment con-
stituted a “tax” for purposes of the Foreign Tax Clause,
which the government argues is the prerequisite for an ad-
justment under FAR 52.229-6(d). The contractor argues
that the Foreign Tax Clause embraces more than “taxes.”
Reply Br. 18. As Triple Canopy notes, Reply Br. 16, the
Board made no findings on the scope of the clause or the
factual question regarding the nature of the GIRA assess-
ment. This question of fact is not for us to decide in the
first instance on appeal. We therefore do not address it. It
is for the Board to consider on remand.