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ASBCA awards contractor compensation for extra-contractual changes

August 8, 2019 By Andrew Smith

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

Filed Under: Contracting Tips Tagged With: certified claim, changes, claim

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

August 8, 2019 By Andrew Smith

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

Filed Under: Contracting Tips Tagged With: certified claim, claim, delays, equitable adjustment

Reminder: Certified claims must include a “signature”

November 29, 2017 By Andrew Smith

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/

Filed Under: Contracting Tips Tagged With: ASBCA, certified claim, claim, Contract Disputes Act

Can contractors force a written decision on a claim?

September 29, 2017 By Andrew Smith

For a contractor with a claim on a federal construction project, an essential occurrence is a “final decision” by the government contracting officer.  Ideally, this is a formal written response addressing the merits of the claim.

But if the contracting officer declines to respond within 60 days, it becomes a “deemed denial” of the claim.  A final decision, formal or deemed, is a jurisdictional prerequisite to the contractor’s right to appeal.

Contractors would obviously prefer a government agency to go on the record with a response to a claim. The Contract Disputes Act allows a contractor to petition a board of contract appeals “to direct a contracting officer to issue a decision in a specified period of time.” Does this empower contractors to force a written claim decision by the government?  Unfortunately, that question was recently answered in the negative.

Keep reading this article at: http://www.constructiondive.com/news/can-contractors-force-a-written-decision-on-a-claim/505464/

Filed Under: Contracting Tips Tagged With: claim, contract dispute, Contract Disputes Act, Contracting Officer's Decision, equitable adjustment, REA, risk

Contractor’s lackadaisical proposal preparation sinks its claim for costs

July 24, 2017 By Andrew Smith

To federal construction contractors, the true legwork may seem to begin only after the government has accepted a proposal and performance has begun. However, a recent Armed Services Board of Contract Appeals (ASBCA) decision reinforces that federal construction contractors’ work often should begin long before contract award.

In Zafer Construction Company, ASBCA No. 56769 (2017), the ASBCA rejected a construction contractor’s allegations of unilateral mistake, unconscionability, and differing site conditions (among other claims for additional costs). The problem? The contractor did not attend a government scheduled site visit, conduct an independent site visit, review technical drawings, submit any inquiries during the proposal stage, or otherwise take reasonable steps necessary to better ascertain the nature of the work prior to submitting a multimillion dollar proposal on a complex project.

By way of background, the contract in Zafer involved the U.S. Army Corps of Engineers’ procurement of renovation work at the Afghanistan National Military Hospital in Kabul, Afghanistan. In 2004, the buildings at this site had fallen into varying states of disrepair. In preparation for issuing the solicitation, the government employed an assessment team (called the Baker team) to survey the site, assess the condition of the buildings and infrastructure, and prepare a report for the government’s use in budgeting and defining the scope of work.

Keep reading this article at: http://smallgovcon.com/claims-and-appeals/contractors-lackadaisical-proposal-preparation-sinks-its-claim-for-costs/

Filed Under: Contracting Tips Tagged With: ACE, allowable costs, Armed Services Board of Contract Appeals, Army Corps of Engineers, ASBCA, claim, GAO, mistake, site conditions

A tale of two contract releases: One for the government and one for the contractor

May 10, 2017 By Andrew Smith

On the heels of the recent post on the subject of key takeaways from recent release of claims decisions, the Armed Services Board of Contract Appeals (ASBCA) and the Civilian Board of Contract Appeals (CBCA) have published another round of notable opinions regarding contract releases:  Supply & Service Team GmbH, ASBCA No. 59630 and ServiTodo, LLC, CBCA 5524.

Both decisions are important, albeit for different reasons.

  • The ASBCA decision demonstrates how a release provision in a contract modification providing an equitable adjustment can bar the government from processing an administrative offset against a contractor.
  • The CBCA decision illustrates the difficulties contractors face when attempting to minimize the impact of a broadly worded release of claims provision.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/05/tale-two-contract-releases-one-government-one-contractor/

Filed Under: Contracting News Tagged With: ASBCA, CBCA, claim, equitable adjustment, REA, release of claims

A two-way street: The duty of good faith and fair dealing

May 9, 2017 By Andrew Smith

The contractual duty of “good faith and fair dealing” is well established in private contracts.  Depending on your jurisdiction, there is very likely either a formal or an informal rule that parties to a contract must deal with each other honestly and in good faith.  This is (usually) not a written contract term – rather, the duty is implied automatically in order to reinforce the parties’ intent when entering into the agreement.

But, did you know that the same kind of duty exists in public contracts – and runs as a two-way street between contractors and the Federal government?  It is true.  And it can help your business in the pursuit of time or damages from the government as part of an REA or Claim.

Implicit in every government contract is the duty for the government to treat the contractor fairly and act in good faith.  Courts discussing this duty place both affirmative and negative obligations on the government.  In other words, the government: 1) must take active steps to enable the contractor’s performance, and 2) must not willfully or negligently interfere with said performance.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2017/04/articles/government-contracting-101/government-contracting-101-duty-of-good-faith-and-fair-dealing/

Filed Under: Contracting Tips Tagged With: claim, fairness, good faith, government contracting, REA

Construction firms seek an extra $300 million for bullet train work

March 13, 2017 By Andrew Smith

Two huge construction firms that are helping to build about 54 miles of bullet train structures in California’s Central Valley are seeking an additional $300 million on their fixed-price contracts, the Los Angeles Times has learned.

The increases, if the state ultimately agrees to cover them, would further bloat the bill for what has been touted as the easiest and most predictable section of the Los Angeles-to-San Francisco system.

The potential increases lend credence to the findings of a December risk assessment by the Federal Railroad Administration that costs for building the full 118 miles of work in the Central Valley could jump by 50%, or $3.6 billion, above current estimates.

The increases are described in letters from Tutor Perini Corp. and Dragados USA. The firms make the case that their contracts do not cover the full scope of the work and that the state’s management of the project is causing delays.

Keep reading this article at: http://www.latimes.com/local/california/la-me-bullet-train-cost-increases-20170302-story.html

Filed Under: Contracting News Tagged With: bullet train, change order, claim, construction, FRA, high speed rail, price adjustment, USDOT

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

January 10, 2017 By Andrew Smith

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/

Filed Under: Contracting Tips Tagged With: CBCA, certified claim, claim, Contract Disputes Act, release of claims

Contractor wins claim for additional costs after partial termination by government

January 6, 2017 By Andrew Smith

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/

Filed Under: Contracting Tips Tagged With: ASBCA, certified claim, change order, claim, partial termination, scope of work

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