THE IMPORTANCE OF TIMELY NOTIFICATION OF CLAIMS

Look at the Changes clauses in the Federal Acquisition Regulation (“FAR”): FAR 52.243-1, Changes-Fixed Price FAR 52.243-2  Changes-Cost Reimbursement FAR 52.243-3, Changes-Time and Materials or Labor-Hours FAR 52.243-4, Changes-Fixed Price [Construction] All of these clauses include a notification provision, such as this one in FAR 52.243-1 (fixed price goods and services) and FAR 52.243-4 (construction contracts): The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written [change] order.  However, if the Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the contract. The need for timely notification was an important part of K-Con Bldg Sys. Inc., v. United … Continue reading

CONSEQUENCES OF GOVERNMENT DELAY OR INDECISION

A recent Armed Services Board decision demonstrates how important it is for the Government to respond to contractor-raised issues in a timely manner when problems arise during the administration of a contract.  Air Services, Inc., ASBCA No. 59843, March 17, 2016.  When a construction contractor discovered that a new Heating, Ventilating and Air Conditioning (“HVAC”) system was too heavy to install on the roof of an existing building, the Government delayed making a decision for 2 ½ months (well past the contract completion date) in directing a modification.  This forced the contractor to incur additional costs for its staff and laborers beyond the completion date.  The Board awarded $41,000 in damages. The Army issued a contract on September 26, 2012 to Air Services to design … Continue reading

WHEN TIMELY NOTICE OF AN INTENDED CLAIM IS NOT REQUIRED

A previous blog discussed “Missing Deadlines in Contract Administration and Claims.”  March 3, 2016.  As explained therein, the consequences of missing deadlines may include the total loss of a claim or appeal.  The blog discussed three specific deadlines: 1. Meeting dates on a delivery schedule. 2. Filing a claim within 6 years of its accrual. 3. Filing an appeal of a denied claim at the Board of Contract Appeals within 90 days, or filing an appeal of a denied claim at the Court of Federal Claims within one year. There is another deadline for claims that should also be considered–the notice to the contracting officer of your intention to file a claim and the reasons for this. Unlike the above deadlines, exceptions are made by … Continue reading

A FEW REMINDERS ABOUT CONTRACT CLAIMS AND APPEALS

A recent Armed Services Board of Contract Appeals (“ASBCA”) case, Shavers-Whittle Const., LLC, ASBCA No. 60025, Feb. 9, 2016, demonstrates all the wrong ways to file an appeal based on a claim. Before going through the significant mistakes, here are a dozen reminders, based on the Contract Disputes Act, 41 U.S.C. Chapter 71, §§7101-7109, and FAR 2.101 (definition of “claim”) for all federal contractors. A claim must be submitted to a Contracting Officer for a decision. A claim must be in writing. A claim must include a “sum certain” (exact amount) sought by the claimant. A claim must be submitted within 6 years of the accrual of the claim. A claim must be certified if it is for more than $100,000. A claim must be … Continue reading