Georgia Tech Procurement Assistance Center

ASBCA awards contractor compensation for extra-contractual changes

By

Contract changes, particularly in the construction context, can be flash points for the Government and a contractor.  In some cases, the Government will assert that the contract requires the contractor to perform certain work; the contractor, pointing to the same (or another) contractual provision, will argue that the contract does not require it.  These diverging positions can often lead to contentious litigation.

If you’ve ever found yourself in this position (or perhaps find yourself there currently), you’ll probably find a recent decision from the ASBCA, GSC Constr., Inc., ASBCA No. 59046 (July 11, 2019), illuminating.  There, the board addressed various changes that the Government allegedly made to the contract, but for which it did not compensate the contractor.  In some cases, it agreed with the contractor that compensation was owed; in one instance, it did not.

The task order, issued by the Army, required the contractor to “construct a combined Central Issue Facility . . . for permanent party troops and soldiers in Advanced Individual Training” at Ft. Sill, Oklahoma.  The task order amount was $11,951,460 and the task order incorporated the contractor’s proposal and twelve amendments.

The contractor alleged that during construction the Government required it to perform additional work beyond the contractual requirements in four different areas: a potable (domestic) water line, a fire protection loop, a sanitary sewer main, and a truck turnaround.  Let’s see how ASBCA analyzed each issue, focusing on key contract language for each.

Continue reading at:  SmallGovCon

This project is behind schedule – what is a contractor to do?

By

Construction projects rarely, if ever, go precisely as planned.  One of the most common issues government contractors face is falling behind schedule.  A schedule is developed, and then the contractor is confronted with differing site conditions, changes, or a litany of other causes of delay.  The contract completion date that seemed easily achievable when performance began may now appear to be impossible to meet.  What should a government contractor do to ensure they are compensated and to avoid liquidated damages?

The first step in most situations is to notify the contracting officer in writing.  There are several FAR provisions that require a contractor to provide notice (e.g., FAR 52.242-17 Government Delay of Work; FAR 52.243-1 Changes – Fixed-Price; and FAR 52.236-2 Differing Site Conditions), and providing notice helps to preserve one’s rights moving forward.

The next step is determining the type of delay that has occurred.  There are three types of delay: inexcusable, excusable, and compensable.  Determining the type of delay requires an analysis of responsibility, impact, and the existence of other delays during the same time period.

Continue reading at:  JDSupra

Reminder: Certified claims must include a “signature”

By

Earlier this Fall, the Armed Service Board of Contract Appeals dismissed an appeal for lack of jurisdiction because the certified claim lacked a proper signature. Appeal of NileCo General Contracting LLC, ASBCA No. 60912 (Sept. 22, 2017).

This simple oversight proved decisive. Although this case does not chart a new course in Contract Disputes Act (CDA) jurisprudence, it serves as a helpful reminder that the Board’s jurisdiction hinges on compliance with basic requirements.

Failing to meet any of those requirements could have significant consequences.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/11/government-contracts-101-reminder-certified-claims-must-include-a-signature/

When a ‘contract release’ releases a claim is a classic contract tongue twister

By

cbcaYou are reviewing a contract modification and notice a paragraph titled “Release of Claims.”  Do you know what claims will be released by this language?

Or worse, the contracting officer just issued a final decision rejecting your claim (under the Contract Disputes Act) because the release in a contract modification constituted an accord and satisfaction.  Did you sign that release and realize its impact?

The Civilian Board of Contract Appeals’ (CBCA) recent decision in Perry Bartsch Jr., Constr. Co. v. Dept. of the Int., CBCA 4865, 5071 (December 8, 2016) helps contractors answer these questions and understand the scope and contours of a release.  Generally, this case offers  important guidance about how to draft a release in an effective and narrow way, and the types of factors that the CBCA will consider when interpreting a release.  Specifically, this decision addresses the issue of whether an apparent global release of claims, contained in just one of many contract modifications, can extinguish all potential claims against the Government.

For a more complete review of the Bartsch decision and its implications, continue reading this article at: https://www.insidegovernmentcontracts.com/2016/12/contract-release-release-claim-classic-contract-tongue-twister/

Contractor wins claim for additional costs after partial termination by government

By

It is common for government contractors to file claims on federal projects where there are government-directed changes to the contract that add time or scope.

contract-changesBut what if – instead of adding time and/or scope – the government de-scopes work from the contract by issuing a partial termination?  A recent successful claim shows that the contractor can still recover its increased costs.

In a decision by the Armed Services Board of Contract Appeals (ASBCA), the Board considered a contract for the provision of food service operations at 18 dining facilities at Fort Leonard Wood, Missouri.  After two years, the agency issued a partial termination for convenience and removed six facilities from the contractor’s scope.  The contractor continued to provide services at the remaining 12 facilities, but could not reach an agreement with the government for the cost of completing the contract.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2016/12/articles/contract-claims/contractor-wins-claim-for-additional-costs-after-partial-termination-by-government/

When government’s failure to issue final decision on a certified claim is a deemed denial

By

A recent decision from the United States Court of Federal Claims (COFC) sets forth the standard for when the government’s failure to make a decision on a certified claim will be considered a deemed denial. InRudolph and Sletten, Inc. v. U.S., the COFC clarified the Contract Disputes Act (CDA) timing requirement for the government to issue a decision on a certified claim.

Certification of a Contract ClaimIn Rudolph and Sletten, the contractor, Rudolph and Sletten (R&S), submitted a certified claim seeking a time extension and additional costs related to a contract for the construction of the Southwest Fisheries Science Center Replacement Headquarters and Laboratory in La Jolla, California. R&S originally submitted its certified claim on August 20, 2013. On October 21, 2013, the contracting officer advised R&S that, given the complexity of the claim, he would need additional time to issue a decision and advised that a decision would be made within nine months. R&S then requested that the contracting officer provide an explanation or work plan detailing the reason for the nine-month extension. The contracting officer provided R&S the explanation and stated that a decision would be made by July 15, 2014. On July 8, 2014, however, the contracting officer informed R&S that he would not reach a final decision on R&S’s first claim by July 15, 2014 as originally estimated, and that, instead, a final decision would be forthcoming on March 15, 2015. R&S then filed an action in the COFC on July 23, 2014. The government sought to dismiss the case before the COFC on the basis that the court lacked jurisdiction to hear the case, because no final decision had been issued by the contracting officer as required by the CDA. R&S argued that the contracting officer’s failure to issue a decision within the required time constituted a deemed denial.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=402296

Contracting News

Read More

Contracting Tips

Read More

GTPAC News

Read More

Georgia Tech News

Read More