MUST REQUEST CO'S DECISION ON CLAIM

We've written often on how to convert the request for equitable adjustment (REA) to a claim for purposes of appeal of the contracting officer's decision.  Recently, the Armed Services Board of Contract Appeals (ASBCA) reminds us that the request for a contracting officer's decision is a prerequisite to an appeal in order for the ASBCA to have jurisdiction.  Hejran Hejrat Co. LTD, ASBCA No. 61234, April 23, 2018.

The REA may be submitted in any form but the preferred form is set forth in our posts on how to write the REA.  You must tell the story of what the contract required, what was changed, how the changes impacted performance, the theory of recovery upon which the REA is based and a calculation of the cost impact resulting directly from the changes enumerated in the REA.

The ASBCA reminds us that the claim, read REA if you wish, need not take any particular form or use any particular wording.  "All that is required is that the contractor submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim."  An REA can become a claim.  But more is involved.  "In addition to explaining the reason for the claim and the amount requested, a claim must also include a request for a final decision from the contracting officer and a certification if the amount sought is greater than $100,000."

Hejran Hejrat disavowed the notion that it was seeking a contracting officer's final decision.  Perhaps the company was trying to be diplomatic in its approach.

Too bad.  The ASBCA said that even the characterization of a submission by a contractor saying he would send a final decision cannot establish that a claim has been submitted.

"There can be no contracting officer's final decision on a claim if the contractor has not requested that the decision from the contracting officer."  (Emphasis added.)

Postscript:  The Court of Appeals for the Federal Circuit (CAFC) reversed this decision saying the facts indicated the contractor was asking for a final decision necessary for jurisdiction at the ASBCA.  However, we recommend explicitly asking for the decision as required by the regulation.  We suggest you do not rely on facts which may imply such a request.

bill@spriggsconsultingservices.com