TIPS FOR TRIAL AT THE ASBCA

Here are ten tips for trial at the Armed Services Board of Contract Appeals written from the perspective of the appealing contractor:

1. File your complaint with your notice of appeal.  You should know enough about the case to construct the complaint so there is no need to wait for the notice of docketing.
2. If the government has the burden of proof, consider filing a motion requiring the government to file the complaint.  But do this only if you do not understand the government's position.
3. Set a trial date as soon as the Board permits.  You need an end date to push against in order to move the case along.
4. Forget interrogatories.  They are a waste of time.  Narrow a request for production of documents only to those necessary to prove your case.  But be persistent.  Production of documents and supplementing the Rule 4 File is important.  Consider a deposition of the contracting officer who wrote the final decision.
5. Consider ADR.  However, the government likely will not agree that it be binding.  If agreement is not reached, you likely have delayed the trial date.  Mediation can be an excellent way to conduct discovery.
6. Use settlement discussions as one of your primary discovery tools.  Open, honest and sincere discussions often expose and narrow the issues.
7. Carefully craft your opening statement.  This is your opportunity to explain the case to the hearing judge.  Oral closing arguments are discouraged since the case will be decided on the record and written briefs are the rule.
8. Prepare, prepare, prepare for trial.  You must move the trial along smartly.
9. Limit cross examination to leading questions to which you know you have an answer from the documents.
10. Ask for simultaneous briefing if you have the burden of proof.  If the government has the burden, sequential briefing will give you the last word.

bill@spriggsconsultingservices.com       bill@spriggslawgroup.com

CONTRACTS OF ADHESION; FAR 52.301

Federal contracts are contracts of adhesion.  That is, the government dictates all elements of the contract including its terms and conditions.  Your opportunities to negotiate the terms of agreement are almost totally nonexistent.  This is just a reminder that when you deal in the federal marketplace, you must follow the rules including the restrictions on what goes into the agreement.  See also what we have written on the Christian doctrine which will read certain clauses into your contract whether they were in the contract initially or not.

And, remember to pay attention to 31 fine print pages in FAR which contain a matrix of clauses to be included in contracts.  See FAR 52.301.  That matrix lists all clauses and explains the contracts to which they apply.  You also can use this matrix in case you disagree that a clause belongs in your contract.  Be sure to complain before the time for submission of your bid or offer. 

bill@spriggsconsultingservices.com

SUPERIOR KNOWLEDGE OR EQUAL IGNORANCE

Courts and boards have long recognized an implied by law duty of the government to disclose information vital to contract performance.  Helene Curtis Industries v. United States, 315 F.2d 774 (Ct. Cl. 1963).  The elements of a claim for breach of this duty are: (1) possession of information the government knows or should have known is material to successful contractor performance; (2) the contractor neither knows nor should have known of the information through normal reasonable investigation; (3) the government knows or should have known of the contractor's ignorance; (4) the government fails to disclose the information; and (5) the contractor suffers injury as a result.

Any information significant to a proper appraisal of the cost and scope of the work falls within the rule.

One aspect of this rule which often is overlooked is what we can call "equal ignorance".  In a way, it is the corollary of the "should have known" rule.  It is also based on an old rule from what is now known as the Court of Appeals for the Federal Circuit (CAFC).  Aerodex, Inc. v. United States, 417 F.2d 1361 (Ct. Cl. 1969).  In Aerodex, a vital component part needed for contract performance was described in the specifications by dimension and performance requirements.  The contractor discovered during production that the government lacked the material specifications necessary to produce the component and therefore the contractor was unable to procure the component from the sole source supplier.  The court held it was reasonable for the contractor to expect the part to be available and the court concluded that the government, being in the better position to know the information, must bear the risk of the costs of failure to perform.

Thus, the contractor and the government may be equally ignorant of the information vital to successful performance.  However, the government may be in a better position to know and therefore the risk of performance extra costs is allocated to the government.  So, don't forget the Aerodex rule.  The government may well be allocated the risk of extra performance costs if it is in the better position to know or should have known as originally articulated in Helene Curtis, the seminal case on superior knowledge.

bill@spriggsconsultingservices.com     bill@spriggslawgroup.com

CONTRACTING OFFICER'S APPROVAL NOT REQUIRED

You may find it difficult to find the contracting officer.  See our post on Who is Your Contracting Officer?  In that post we point out you must keep track of who your contracting officer is and then keep him or her fully informed about problems during performance.  You must also seek redress for any changes as the problems arises.  And, you must deal with the contracting officer who has the authority to commit the government.

But the approval or authorization of the contracting officer is not always required.  If anyone in the government is responsible for a constructive change, approval of the contracting officer is not required.  By that we mean you do not need to show that the contractive officer ordered, acknowledged or agreed with the change.  In short, the constructive change doctrine arises on a totally separate theoretical basis from a formal change requiring the authorization of the contracting officer.

Why?  Because the constructive change theory is based on breaches of government duties which are implied by law in every contract.  Defective specifications is based on breach of the government's warranty of its data package.  A specification writer made a mistake.  Superior knowledge is based on breach of the government's obligation to provide information necessary for successful performance.  Someone in the government failed to alert the contractor to a change or problem.  Failure to cooperate is based on breach of the government's obligation to cooperate and not interfere in the contractor's performance.  Inspectors, engineers or contract specialists may be guilty of lack of cooperation and interference.  Commercial impracticability is based on the government's obligation to provide a specification which is commercially practicable.

Many people don't know the history of constructive changes.  Prior to the Contract Disputes Act of 1978, the boards of contract appeals did not have jurisdiction over breach of contract claims.  As the boards encountered more and more problems based on breaches of contract, they developed the theory that a breach was a "constructive change" to the contract.  That theory has now had a long history of approval from the boards and the courts.

And, constructive changes do not require approval of  acknowledgement of  the contracting officer.

bill@spriggsconsultingservices.com

WHO IS YOUR CONTRACTING OFFICER?

Who is your contracting officer and when did you last communicate with him or her?  Please read my posts on contract management and contract management revisited.  Most of the requests for equitable adjustment and claims we handle involve situations where the contractor fails to communicate effectively with the person who has the warrant to commit the government.  Not the contract specialist.  Not the contracting officer's representative.  Contractors must communicate with the contracting officer.

The first problem we've seen is identifying the contracting officer with the warrant for the contract.  This should be your first order of business.  Contractors should do whatever is necessary to remain informed about who is the decision maker with the authority to commit the government. 

The next problem is the failure to promptly raise with the contracting officer any issues which might conceivably give rise to a request for equitable adjustment or claim for breach of contract.  This means constant surveillance of contract performance and quick identification of performance issues.  Then, promptly notify the contracting officer with as much information as you possibly can muster.

Finally, submit the request for equitable adjustment as a place holder.  I cannot over emphasize this.  Yes, immediately submit your request or claim with as much information as you can.  In fact, you may want to develop a form which you use to fill in the blanks.  You always can amend your submission as more information, such as pricing, becomes available.

Deal with the contract specialist and contracting officer's representative as a matter of courtesy.  But make a pest of yourself, if need be, in your constant effort to identify the real contracting officer and to discharge your absolute obligation to your employer/client to raise performance problems as they occur.  And, don't just raise them.  Document them.  See our posts on how to write the request for equitable adjustment.

bill@spriggsconsultingservices.com    bill@spriggslawgroup.com