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Bad-faith federal litigation tactics compel court to award small business attorneys’ fees

December 1, 2016 By Andrew Smith

Even though the federal government maintains an entire agency whose mission is purportedly to assist small businesses — the Small Business Administration (SBA) — regulators seem ever oblivious to their impact on entrepreneurs. The National Labor Relations Board’s (NLRB) effort to redefine who is an “employer” and the NLRB’s and the Department of Labor’s (DOL) enmity toward independent contracting are two current examples. A third is DOL’s so-called Fiduciary Rule, which hits sole-practitioner and small-business investment and insurance advisors especially hard.

Small businesses are also at a particular disadvantage when disputes with the government end up in court. A recent U.S. Court of Federal Claims decision, SUFI Network Services, Inc. v. US, exhibits government’s unfortunate willingness to exploit its power in disputes with a small business and the role courts can play in protecting entrepreneurs’ rights.

SUFI contracted with the U.S. Air Force (USAF) in 1996 to be the exclusive long-distance-call service provider for the guest lodging facilities on Air Force bases in Germany. Over the next 8 years, USAF personnel made it impossible for SUFI to successfully offer services.

For example, calling cards were provided to guests to circumvent SUFI’s service. Also, requests by SUFI that government phones be removed from the facilities were repeatedly ignored. SUFI declared that the USAF had committed a material breach of the contract and ceased services in August 2004. As required by the contract, SUFI filed a claim with its contracting officer for $130 million in damages. The officer awarded $133,000.

Obviously dissatisfied, SUFI appealed to the Armed Services Board of Contract Appeals (hereinafter, Board), increasing its request to $163 million.

Keep reading this article at: http://www.forbes.com/sites/wlf/2016/11/25/bad-faith-federal-litigation-tactics-compel-court-to-award-small-business-attorneys-fees/#14f0203f1f35

Filed Under: Contracting News Tagged With: abuse, Air Force, Armed Services Board of Contract Appeals, bad faith, Board of Contract Appeals, contract dispute, Court of Appeals, Court of Federal Claims, DOL, Fiduciary Rule, frivolous action, independent contractor, litigation, NLRB, SBA, small business

Armed Services Board of Contract Appeals reaffirms only a CO can modify a contract

July 31, 2015 By Andrew Smith

A construction contractor was unable to recover the costs of performing changed work allegedly ordered by the government’s project engineers because the engineers did not have authority to modify the contract.
asbca sealAs demonstrated in a recent Armed Services Board of Contract Appeals (ASBCA) decision, only a contracting officer or the contracting officer’s designated representatives may modify a contract, and a contractor bears the risk of non-payment by performing changed work directed by an unauthorized government employee.

The ASBCA’s decision in Circle, LLC, ASBCA No. 58575 (July 1, 2015) involved a contract between Circle, LLC and the U.S. Army Corps of Engineers, pursuant to which Circle was to construct a concrete flume on the Two Mile Canal in Jefferson Parish, Louisiana. As part of its scope of work, Circle was to erect a Temporary Retaining Structure to stabilize the site while the flume was constructed.

Keep reading this article at: http://smallgovcon.com/claims-and-appeals/governments-engineers-couldnt-modify-contract-says-asbca/

Filed Under: Contracting News Tagged With: acquisition workforce, appeal, Army Corps of Engineers, ASBCA, Board of Contract Appeals, delegation of authority, modification

A faster way for contractors to recover on claims

September 4, 2014 By ei2admin

Filing claims against the government is not contractors’ preferred method of resolving problems on a federal project, but often contractors are left with little choice with federal procurement officials spread thin. For example, the U.S. Army Corps of Engineers has not moved on a significant number of pending changes and refused to pay the contract balance because the Corps has assessed an equal amount in liquidated damages for delay. The delay was caused by a differing site condition, for which the contractor submitted a claim for time and money. After waiting 60 days, the Corps responded by stating that it will issue the contracting officer’s final decision in seven months. Meanwhile, the contractor continues to spend money trying to close out the project. 

How can contractors speed up the claims process, recover on favorable terms, and avoid throwing good money after bad on a multiyear dispute resolution process?   The answer: Unbundle your claims and file as many under $50,000 or $100,000 as possible to take advantage of the various board of contract appeals’ expedited or accelerated procedures. Then consolidate all expedited appeals and push aggressively toward a fast and cost-effective global resolution.

Keep reading this article at: http://www.foxrothschild.com/newspubs/newspubsArticle.aspx?id=15032395091

Filed Under: Contracting Tips Tagged With: ACE, appeal, Board of Contract Appeals, claim, contract dispute, Contracting Officer's Decision, disputes, FAR, recovery

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