HOW TO SIGN YOUR CLAIM AND CERTIFICATION

The Contract Disputes Act of 1978 (“CDA”) contains a few simple requirements for claims over $100,000, including certification. Yet to this day contractors have consistently violated the certification requirements and, as a result, had their claims dismissed by the Boards and Courts. This happened most recently in NileCo Gen’l Contracting, LLC, ASBCA No. 60912, Sept. 22, 2017. It seems as if a technology-crazed world sometimes refuses to use the most low-tech machine of all—the pen—because the pen is just not electronically convenient. Hopefully, government contractors will read this blog. The CDA states that each claim for more than $100,000 must be certified to state that: The claim is made in good faith; The supporting data are accurate and complete to the best of the contractor’s … Continue reading

DISMISSAL OF AN INCOMPLETE (IMPROPER) CLAIM OR APPEAL

A recent Armed Services Board of Contract Appeals (“ASBCA”) decision is a strong reminder that contractors must submit complete and proper claims, or they will be dismissed by either the Contracting Officer or a board or court, if appealed to one of those forums. Andrews Contracting Services, LLC, ASBCA No. 60808 (May 22, 2017). Andrews submitted to the Contracting Officer a “Request for Equitable Adjustment” for $292,797.51 in connection with its contract. The REA contained a certification required by the Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.243-7702 where the contractor’s President certified that “the request is made in good faith and that the supporting data are accurate and complete to the best of my knowledge and belief.” The Contracting Officer denied the REA three months … Continue reading

CONSTRUCTIVE ACCELERATION

Constructive acceleration occurs when the government demands the contractor’s compliance with an original contract deadline even though there is excusable delay. This is precisely what happened in IAP Worldwide Svcs, ASBCA no. 59397 et al, May 17, 2017. A contractor is entitled to compensation for additional costs that result from the constructive acceleration. In IAP, the Army Corps of Engineers issued three delivery orders to provider power plants at forward military bases in Pakistan. The delivery orders incorporated IAP’s proposal which made it clear that IAP would ship the power plants via surface transportation, using what was called the “Pakistan route.” Before the shipments were due, in response to U.S. combat operations, Pakistan closed the Port of Karachi and the land routes from that city … Continue reading

CONTRACTOR CAN SEEK PAYMENT FOR WORK THAT WAS INVOICED AND ACCEPTED PRIOR TO DEFAULT TERMINATION

Claude Mayo Construction Company, Inc. (“Mayo”) had a contract with the General Services Administration (“GSA”) to renovate a U.S. Attorney’s Office in Syracuse, NY. Before Mayo completed the project, GSA terminated the contract for default. Mayo sought to overturn the default, which is not the subject of this appeal. However, Mayo also sought damages for a breach of contract because GSA, without basis, failed and refused to pay Mayo for work completed and accepted by GSA prior to the default termination. Claude Mayo Const. Co., Inc., No. 15-1263C (Fed. Cl. June 23, 2017). GSA sought to dismiss the breach of contract, asserting failure to state a claim. The government alleged that Mayo failed to identify a duty arising from the contract or a breach of … Continue reading

A COMMON SENSE ANALYSIS OF WHAT IS A CLAIM

How many contractor demands for payment make a claim? The Contract Disputes Act (“CDA”) requires that “each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(1). The Federal Acquisition Regulation (“FAR”) includes the same requirement at FAR 33.206. While the CDA itself does not define claim, the FAR does, as follows: “‘Claim’ means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the … Continue reading

FIRST ARTICLE DOES NOT REDEFINE CONTRACT SPECIFICATIONS FOR ACCEPTANCE

In a long and complex case, the Armed Services Board of Contract Appeals (“ASBCA”) recently explained that a First Article Test (“FAT”) does not add product specifications above those detailed in the contract, and that in order to reject production articles, the government must demonstrate that they are unacceptable because they do not meet specifications in the contract. Ensign-Bickford Aero. & Def. Co., ASBCA No. 57929, Oct. 20, 2016. The case involved MK 154 detonators procured by the Naval Surface Warfare Center. The MK 154 is used to explode charges from a safe distance. Explosive ordnance disposal personnel use the MK 154 to blow up improvised explosive devices (“IEDs”), suspect items, or unserviceable ammunition under controlled conditions. Ensign’s contract contained a detailed Technical Data Package … Continue reading

NEW CONTRACTING OFFICER IS NO REASON TO DELAY DECISION ON CLAIM

The Contract Disputes Act (“CDA”) requires timely final decisions on claims, except when there is a reasonable basis for a delay. (See discussion below). Despite the statutory requirements, Contracting Officers (“CO”) frequently delay making a final decision on a contract claim. A recent Board case addressed a delay that was primarily due to a change in contracting officers, and concluded that “internal staffing matters are not one of the factors used to determine a reasonable time under the CDA.” Volmar Const., Inc., ASBCA No. 60710-910, October 7, 2016. What the CDA Requires: When a CO receives a claim under $100,000, the CDA requires the CO to issue a decision within 60 days “from the contracting officer’s receipt [of the claim].” 41 U.S.C. § 7103(f)(1). When … Continue reading

CLAIM MAY USE ESTIMATES TO ARRIVE AT “SUM CERTAIN”

This blog recently discussed a Federal Circuit decision which held that a contractor’s claim does not accrue until the exact amount (“sum certain”) of the claim is known to the contractor. Kellogg Brown & Root Serv. Inc. v. Murphy, 823 F.3d 622 (Fed. Cir. 2016). The blog was titled “Claim Does Not Accrue Until ‘Sum Certain’ is Known by Contractor.” Without contradicting this basic requirement for a sum certain in claims under the Contract Disputes Act (“CDA”), the Armed Services Board of Contract Appeals (“ASBCA”) has reiterated that the use of estimated or approximate costs in determining the value of a claim is permissible as long as the total overall demand is for a sum certain. Government Services Corp., ASBCA No. 60367, June 20, 2016. … Continue reading

CLAIM DOES NOT ACCRUE UNTIL “SUM CERTAIN” IS KNOWN BY CONTRACTOR

The Federal Circuit recently clarified that a contractor’s claim does not accrue until the exact amount (“sum certain”) of the claim is known to the contractor. Kellogg Brown & Root Serv., Inc. v. Murphy, No. 2015-1148 (Fed. Cir. May 18, 2016), 2016 WL 2893218. This case is important because any dollar claim that fails to include a “sum certain” should be dismissed by the contracting officer and the courts. First, a brief discussion of accrual of claims, and definition of a claim. The Contract Disputes Act provides that a claim “shall be submitted within 6 years after the accrual of the claim.” 41 USC § 7103(a)(4)(A). The FAR defines accrual of a claim as follows: “the date when all events, that fix the alleged liability … Continue reading

IT’S EASY FOR A SMALL BUSINESS TO APPEAL A DENIED CLAIM

Most small (and even some large) businesses don’t realize how easy it is to appeal a denied claim to either the Armed Services Board of Contract Appeals (“ASBCA”) or the Civilian Board of Contract Appeals (“CBCA”), depending on the agency that awarded the contract.  You don’t even need an attorney to do it. The first thing you need is a written claim submitted to the contracting officer (“CO”), requesting a decision.  41 U.S.C. § 7103.  A claim is a written demand that the government pay you money as a matter of right, or adjust or interpret contract terms.  FAR 2.101.  The CO normally has 60 days to issue a final decision on your claim, but if the CO fails to issue a decision, the claim … Continue reading