When the government shuts down or restricts spending, some of all of the following things may take place: solicitations may be canceled; options may not be exercised; limitation of funds clauses will be used by agencies; payments may be delayed; only minimum orders may be placed under Indefinite Delivery/Indefinite Quantity (IDIQ) contracts; the changes clause may be used with greater frequency; the level of work may be reduced; the period of performance may be revised; the stop work order clause may be used; the suspension of work clause may be used; acceleration of performance may be ordered; and contracts may be terminated for default or convenience.
Theories of recovery include breach of contract and constructive changes.
This is quite a list and most commentators believe government agencies will use any or all of these actions. So what should contractors do? The preparations guide is simple but difficult.
Any interference in the contractor's performance gives rise to a constructive change for the breach of the government's obligation to cooperate with the contractor and not interfere in its performance. Explicit contract clauses may be implicated. So, contractors should set up separate charge accounts for the financial effects of a government shutdown. The immediate effect may be a failure to pay or the inability to reach the contracting officer for direction. The contracting officer may issue a suspension or stop work order because she is concerned about the Anti-deficiency Act (discussed elsewhere in these blog posts).
There is no question that a government shutdown is a government act in its sovereign capacity and therefore an excusable delay. (The shutdown also is an act of the government in its contractual capacity.) There should be no trouble extending schedules for delays caused by the government shutdown.
Since the shutdown also is an act of the government in its contractual capacity, claims may be submitted under the Changes, Suspension or Stop Work clauses. In response, the government may assert the sovereign act defense. We've written about this elsewhere in these blog posts. Simply put, the government can defend itself by showing the action was not undertaken to benefit it in its contractual capacity but rather was undertaken for the broad benefit of the public at large. There are arguments on both sides. The government will argue the shutdown was necessary for the public good. Contractors may argue the action was in part self serving and designed to further the government's interests in its contractual capacity.
In United States v. Winstar Corp., 578 U.S. 839 (1996), the Supreme Court drew a distinction between a pubic act intended to accomplish a broad government objective and an action tainted by a government objective of self-relief. In the latter case, the sovereign act defense does not apply. We believe that since the shutdown is a government act in its contractual capacity which furthers the government's interests, the sovereign act defense will fail. In a shutdown, the government fully intends that its actions will result in non-payments, delayed payments, changes, claims and terminations.
So, what should a contractor do? Document the effects of the shutdown. Treat it as any other potential claim for equitable adjustment. Set up a separate charge account to collect the financial impact of the shutdown. Consider submitting a request for equitable adjustment or claim. But most importantly, try to keep in touch with the contracting officer and request direction. If she is unavailable, put in writing what you intend to do in response to the shutdown and ask for confirmation from the contracting officer.
And consult a professional to help you submit your claim.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Thursday, January 10, 2019
Friday, November 23, 2018
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- Use settlement discussions as one of your primary discovery tools. Open, honest and sincere discussions often expose and narrow the issues.
- 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.
- Prepare, prepare, prepare for trial. You must move the trial along smartly.
- Limit cross examination to leading questions to which you know you have an answer from the documents.
- 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.
Thursday, November 22, 2018
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
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
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
Monday, November 12, 2018
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
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
Sunday, November 11, 2018
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
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
Thursday, August 23, 2018
HOW TO WRITE A PASS THROUGH AGREEMENT
A contractor and subcontractor may agree to pass through to the government the subcontractor's request for equitable adjustment. Here is a suggestion on how to write that "pass through" or "sponsorship" agreement adapted from published literature of the Public Contract Law Section of the American Bar Association:
Subcontractor will give Contractor a fully supported written REA within five (5) years after the REA accrues but in no event later than final payment under this Agreement or Subcontractor shall be barred from any remedy for such REA.
Subcontractor will cooperate fully with Contractor in prosecuting the REA against the Owner and will be bound by the outcome unless Contractor does not afford Subcontractor a reasonable opportunity to participate in the resolution of the REA or Contractor, having determined to discontinue its own prosecution of the REA, does not afford Subcontractor an opportunity to continue to prosecute the REA in Contractor’s name.
SPONSORSHIP OF
REQUESTS FOR EQUITABLE ADJUSTMENT (REA)
Subcontractor will give Contractor a fully supported written REA within five (5) years after the REA accrues but in no event later than final payment under this Agreement or Subcontractor shall be barred from any remedy for such REA.
Subcontractor will cooperate fully with Contractor in prosecuting the REA against the Owner and will be bound by the outcome unless Contractor does not afford Subcontractor a reasonable opportunity to participate in the resolution of the REA or Contractor, having determined to discontinue its own prosecution of the REA, does not afford Subcontractor an opportunity to continue to prosecute the REA in Contractor’s name.
Contractor shall cooperate with Subcontractor in
prosecuting the REA against the Owner but Contractor shall have the sole right
to make final decisions on prosecution and settlement of the REA. Subcontractor will take the lead in
prosecuting the REA against the Owner and Contractor will assist Subcontractor
by allowing Subcontractor to pursue the REA in Contractor’s name.
Subcontractor shall submit with the REA a certification
to Contractor, signed by an authorized representative of the Subcontractor that
the claim is made in good faith, the supporting date are accurate and complete
to the best of the signatory’s knowledge and belief, the amount requested
accurately reflects the contract adjustment for which Subcontractor believes
the U.S. Government is liable and the signatory is authorized to certify the
REA on behalf of Subcontractor.
Subcontractor indemnifies and holds Contractor harmless from damages,
costs (including attorney fees) and other liabilities arising from any breach
of such certification or any violation of law against misrepresentation, fraud
or false statements.
Contractor and Subcontractor will each bear its own costs
of prosecuting the REA.
Subcontractor shall proceed diligently with performance
of this Agreement pending final resolution of any REA arising under this
agreement.
This clause applies to any REA, claim or appeal arising
under or related to this subcontract agreement.
Friday, August 10, 2018
DO T FOR D DEFENSES REQUIRE SUBMISSION OF A CLAIM?
When a contractor appeals a decision to terminate its contract for default, must that contractor also submit to the contracting officer a claim, obtain a decision on that claim and appeal the decision or the failure to render it? At least 11 fairly recent cases have addressed this issue and the decisions have left the waters very murky. Until recently, all a contractor had to do was appeal the termination for default and avail itself of the panoply of defenses available including, for example, acts of the government in its contractual capacity, which include constructive changes.
As a result of Maropakis Carpentry, Inc. v. United States, 609 F. 3d 1323 (Fed. Cir. 2010), and its progeny, a contractor must consider the need to file a separate claim seeking an adjustment in the terms of the contract. When does a particular defense require an adjustment in the terms of the contract? When does the defense require that a claim be submitted to the contracting officer?
The cases addressing these issues do not provide a clear answer.
In ERKA Constr. Co., Ltd. ASBCA No. 57618, 12-2 BCA para. 35,129, the Board said if the defense could be a constructive change which could lead to a contract adjustment, the contractor was required to submit that claim and having failed to do so, the Board granted the government's motion to dismiss. Other cases have suggested that a defense requiring the interpretation of contract language but not a contract adjustment might also require a claim be submitted to the contracting officer.
Wow. Almost any defense may raise issues of contract interpretation.
So where does a contractor stand today? If terminated for default (or if defending any other government claim) must a contractor also submit a claim and request a contracting officer's final decision on that claim? Recently, the ASBCA stated: "Based on these decisions, it is clear that, while all possible defenses need not be submitted to a contracting officer for a final decision, a contractor contesting liquidated damages or a default termination due to excusable delay must submit a claim for a time extension before appealing to the Board." ECC CENTCOM Constructors, LLC, ASBCA No. 60647, September 4, 2018.
Our advice is that a contractor should always file a claim asserting entitlement to a contract adjustment in a default termination appeal. Request a final decision and either appeal the decision or appeal the failure to render it (FAR Part 33). If the adjustment requested to support the defense involves money, also submit with the claim a sum certain.
It may be better to be safe than sorry. The claim can be submitted after the appeal on the termination for default is taken. The second appeal of the claim itself can be consolidated with the T for D appeal. We've had two recent ASBCA appeals in which this has happened.
bill@spriggslawgroup.com
As a result of Maropakis Carpentry, Inc. v. United States, 609 F. 3d 1323 (Fed. Cir. 2010), and its progeny, a contractor must consider the need to file a separate claim seeking an adjustment in the terms of the contract. When does a particular defense require an adjustment in the terms of the contract? When does the defense require that a claim be submitted to the contracting officer?
The cases addressing these issues do not provide a clear answer.
In ERKA Constr. Co., Ltd. ASBCA No. 57618, 12-2 BCA para. 35,129, the Board said if the defense could be a constructive change which could lead to a contract adjustment, the contractor was required to submit that claim and having failed to do so, the Board granted the government's motion to dismiss. Other cases have suggested that a defense requiring the interpretation of contract language but not a contract adjustment might also require a claim be submitted to the contracting officer.
Wow. Almost any defense may raise issues of contract interpretation.
So where does a contractor stand today? If terminated for default (or if defending any other government claim) must a contractor also submit a claim and request a contracting officer's final decision on that claim? Recently, the ASBCA stated: "Based on these decisions, it is clear that, while all possible defenses need not be submitted to a contracting officer for a final decision, a contractor contesting liquidated damages or a default termination due to excusable delay must submit a claim for a time extension before appealing to the Board." ECC CENTCOM Constructors, LLC, ASBCA No. 60647, September 4, 2018.
Our advice is that a contractor should always file a claim asserting entitlement to a contract adjustment in a default termination appeal. Request a final decision and either appeal the decision or appeal the failure to render it (FAR Part 33). If the adjustment requested to support the defense involves money, also submit with the claim a sum certain.
It may be better to be safe than sorry. The claim can be submitted after the appeal on the termination for default is taken. The second appeal of the claim itself can be consolidated with the T for D appeal. We've had two recent ASBCA appeals in which this has happened.
bill@spriggslawgroup.com
Wednesday, May 30, 2018
CICA STAY OVERRIDE OVERRULED
The Court of Federal Claims (COFC) recently has overruled a Competition in Contracting Act (CICA) override of the mandatory stay in a bid protest case. The stay may be overridden by a contracting agency if it demonstrates urgent and compelling reasons or if performance of the contract is in the best interests of the government.
Obviously, the court pointed out, performance of most contracts would be in the best interests of the government or the contract would not have been awarded in the first place. So, something more must be shown by the agency to justify the override. The exception to the automatic say rule which permits an override to the stay based on best interests should not be permitted to cancel the rule that the stay be automatic.
The COFC has addressed the best interests exception in only a few cases. If meeting a performance deadline is critical to the entire purpose of the contract, the court has permitted the override to stand.
The problem is the agency must show that the timing is so crucial that a continuation of the existing contract pending the outcome of the protest or a bridge contract to accomplish the same thing would not suffice. The government's argument that lapse in services is an unacceptable risk is insufficient.
In this recent case, Intelligent Waves, LLC v. United States, COFC No. 18-465 C, May 9, 2018, the court pointed out that the agency had ample time to consider how to take appropriate measures to avoid any lapse in services pending the conclusion of the protest. No claim was made by the government that the timing of the new contract performance, as opposed to continuation of the old contract or an interim bridge contract, would be crucial, in this case, to the health or safety of veterans.
The agency had waited to award the new contract until 6 days before the old contract expired. The court said the government essentially argued that the stay must be overridden to avoid a lapse in services because it waited too late to extent the existing contract or enter into a bridge contract.
The court concluded that it was in the best interest of the United States that the integrity of the competitive nature of the procurement process be upheld. In this case, the agency would not be allowed to manipulate the congressional mandate.
The court overruled the agency's override and reinstated the automatic stay.
bill@spriggsconsultingservices.com
Obviously, the court pointed out, performance of most contracts would be in the best interests of the government or the contract would not have been awarded in the first place. So, something more must be shown by the agency to justify the override. The exception to the automatic say rule which permits an override to the stay based on best interests should not be permitted to cancel the rule that the stay be automatic.
The COFC has addressed the best interests exception in only a few cases. If meeting a performance deadline is critical to the entire purpose of the contract, the court has permitted the override to stand.
The problem is the agency must show that the timing is so crucial that a continuation of the existing contract pending the outcome of the protest or a bridge contract to accomplish the same thing would not suffice. The government's argument that lapse in services is an unacceptable risk is insufficient.
In this recent case, Intelligent Waves, LLC v. United States, COFC No. 18-465 C, May 9, 2018, the court pointed out that the agency had ample time to consider how to take appropriate measures to avoid any lapse in services pending the conclusion of the protest. No claim was made by the government that the timing of the new contract performance, as opposed to continuation of the old contract or an interim bridge contract, would be crucial, in this case, to the health or safety of veterans.
The agency had waited to award the new contract until 6 days before the old contract expired. The court said the government essentially argued that the stay must be overridden to avoid a lapse in services because it waited too late to extent the existing contract or enter into a bridge contract.
The court concluded that it was in the best interest of the United States that the integrity of the competitive nature of the procurement process be upheld. In this case, the agency would not be allowed to manipulate the congressional mandate.
The court overruled the agency's override and reinstated the automatic stay.
bill@spriggsconsultingservices.com
Wednesday, May 23, 2018
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
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
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