GOVERNMENT SHUTDOWN CLAIMS

Here we go again. Use the word search feature in the upper left-hand corner to find what we have written about government shutdowns. Be sure to add the government's sovereign act defense. In summary, the shutdown is a constructive suspension that is redressable under the Changes clause; declaratory relief is also available, and the government contract defense should not absolve the government of responsibility.

Why is the shutdown a constructive suspension? The first sentence of the Suspension clause provides: "suspend, delay. or interrupt all or any part of the work." The clause also provides that the remedy is under any equitable adjustment clause.

Yes, try to get direction from your contracting officer. If the past is prologue, he or she will not respond. You are on your own. Seek expert advice, but above all, use your sound business judgment. Weigh the risks. If the government is foolhardy enough to terminate for default, the suspension as a sovereign act is an absolute defense to the termination.

Read what I have written about REAs and claims. The quickest way to ADR, appeal, and judicial resolution of the damage caused by the shutdown is to file a claim and skip the REA. Your contracting officer will likely not feel responsible and will not issue a final decision, leaving you to file an appeal based on deemed denial.

In fact, start with a nonmonetary claim to avoid the 60-day wait for the contracting officer's decision. You can add the monetary claim later. In both cases, you need to ask for the conclusion and open with an attempt to go ADR from the start.

HOW TO WRITE A CLAIM

1.    Send a letter in simple, concise terms to the contracting officer who claims relief.

2.      The letter says it is a claim under the Contract Disputes Act of 1978 and FAR Parts 2.101 and 33.201 through 214.

3.      In the letter, state that you request a final decision of the contracting officer as required by the Contract Disputes Act of 1978 and FAR 33.211.

4.      Certify the claim (if it exceeds $100,000.00) as follows:  I certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.  Do not deviate from this language found in FAR 33.207(c).

5.      Be sure to state a sum certain as the claim amount.

6.      Point out that interest runs on the claim from the time of its receipt.  FAR 33.208.

7.      Be sure to request a final decision as required by FAR 33.211.

8.      Appeal the decision (or the failure to render one) to the appropriate Board.

bill@spriggslawgroup.com