This is the fourth in a several part series directed at project managers based on actual experiences.
What if you are immersed in a veritable quagmire of performance problems with a contracting officer who is in over his head and is practically useless if not very much in the way of solutions. Your monthly briefings become weekly as you are bleeding valuable resources with no end in sight. In fact, your biggest problem may not be the losses to date. An even bigger concern is when will this contract go away. You see no end in sight. The contracting officer demands more work and do-overs as the weeks and months slug by.
You are not accustomed to micro management but someone told you in government contracts, you had better understand the rules if you are to guide the ship through the dangerous shoals. That, and hire the experts. So, you hire the experts. It will be a teaching experience and maybe, just maybe, the problem may be solved. You pass the first test. Get yourself up to speed with the help of the experts.
In government contracts, you cannot get immediate relief during performance by filing an injunctive relief action in court. We carried over the pond the notion that the king can do no wrong. Sovereign immunity. You can't sue the government without its consent granted through statutes and regulations. Too bad? Can't get timely judicial relief? You are told you must follow your administrative remedies.
There is an administrative claims process. Most often it is used to pursue monetary claims known as requests for equitable adjustment that also include schedule relief. The claim must first go to the contracting officer who has at least 60 days to render a decision on the claims before you can appeal to a judicial tribunal. In the meantime the law requires you to continue performance notwithstanding the urgent need to get out of the contract. Yes, you have now decided what you want is to get out.
Enter the expert. There also are non-monetary claims mostly consisting of matters of contract interpretation and abuse of discretion. Most disputes involve a heavy element of contract interpretation. When all else fails, read the contract, he says. As it turns out, a careful review of the contract and the facts, reveals that the disputes with the contracting officer mostly involve contract interpretation issues.
At last, a plan forward. You are told you do have an immediate remedy of judicial relief. The experts put together a two page non-monetary claim for relief that includes the salient facts and citations to and application of the pertinent contract interpretation rules. You send it to the contracting officer and request his final decision. Wait 60 days? No. that requirement applies only to monetary claims. You can appeal a deemed denial within a reasonable time which could be one week if the issues are well known, as they usually are, by the contracting officer.
The expert files the notice of appeal and complaint in one document and immediately files a motion for summary judgment on the contract interpretation issues. The action seeks declaratory relief over which the tribunals have jurisdiction and also alleges cardinal change and the right to stop work. A cardinal change is a material breach often based on the number of changes which change the nature of the bargain. All of this takes place within a couple of weeks and is the next best thing to injunctive relief. And you are before a judicial tribunal.
Prompt action by the tribunal is critical and it may not be timely. However, the result of taking this bold action may precipitate settlement. The expert should be able to find a way to impress on the tribunal the need for immediate relief.
There you have it. The medicine to take affirmative action to get rid of your headache.
bill@spriggslawgroup.com
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