PROMPT JUDICIAL INTERVENTION

Why declaratory relief? It can break up an impasse preventing performance. What is it? A judgment from the court or board that resolves a dispute that may be a severe impediment to continued performance.

Suppose you are managing your federal government contract as we have suggested. In that case, you will have a relationship with the contracting officer that promotes transparent, well-documented negotiation of solutions to performance problems. (One of my clients once told me he was unsure who his contracting officer was.)

The fastest, most effective way to resolve disputes is one-on-one, perhaps even while washing up in the restroom (remind me to tell you that story). Know, be very friendly with, and respect your warranted contracting officer. Communicate daily.

If you have an unresolvable disagreement, get her agreement to ask for an ADR judge to mediate. Both Boards will dispatch a real judge to aid as a neutral at any stage of your problem, even early claim and incipient dispute. And why not? The judges have been trained to unite the parties; they are highly motivated, and it does not cost anything. One day should do it. It's not a trial.

Then, there is the point of this piece. The Civilian Board just issued a decision denying the contractor's request for declaratory relief on a nonmonetary claim. The attorney involved is an old salt who should have known better. One longstanding test for such relief is whether there is an adequate legal remedy. Clearly, a monetary claim was adequate relief. Declaratory relief is an extraordinary equitable remedy where there is a dispute that the declaration will resolve and legal remedies are unavailable.

Let me repeat for emphasis. To obtain declaratory relief on a timely basis, there must be a genuine dispute, an action by the court or board can resolve it, and no remedy at law is available to resolve the dispute. The best example is a disagreement over the interpretation of language in the contract. 

The best example is a contract interpretation issue, a legal matter solely within the province of the court or board. The parties are at an impasse, and performance cannot reasonably continue without judicial intervention.

In our experience, 90% of serious disputes involve contract interpretation issues, and the situation cries out for prompt determination by a judge. File your nonmonetary claim. No certification. No 60-day wait for a final decision.

We've been successful with this. The contractor and the contracting officer were at an impasse over language in the contract. The contractor thought its obligation was over when the warranty period expired. The government took the position the warranty began to run once the total construction phase was tested and accepted. The contractor wanted to refuse to perform. Instead, we filed a declaratory relief action to force the contract interpretation issue and whether the order to perform was a cardinal change. We settled the case with the help of the board judge.