Georgia Tech Procurement Assistance Center

Reminder: Certified claims must include a “signature”

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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/

Formal claim required to appeal negative performance evaluation

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For federal contractors, it is not an exaggeration to say that performance evaluations are the lifeblood of the business.

A less-than-satisfactory evaluation in the Contractor Performance Assessment Reporting System (CPARS) affects far more than just the agency’s assessment of performance on a particular project.  A negative evaluation follows a contractor around – impacting the ability to obtain future contracts due to the specter negative past performance ratings.

The good news for contractors is that the ability to challenge and – if successful – reverse negative CPARS evaluations is a quickly developing area of government contracting law.

The first step in any successful CPARS challenge involves meaningful participation in the evaluation process.  The Federal Acquisition Regulation (FAR) Part 42.15 entitles contractors to submit comments and receive an agency review of a disputed performance evaluation.  Specifically, contractors are entitled to submit comments, rebuttal statements, and/or other information in response to the agency’s evaluation.  The agency must then review those comments at a level above the contracting officer and update the evaluation, if necessary.

Keep reading this article at: https://governmentcontracts.foxrothschild.com/2017/09/articles/contract-claims/cpars-challenge-primer-formal-claim-required-to-appeal-negative-performance-evaluation/

Can contractors force a written decision on a claim?

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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/

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

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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/

Failure to follow correct claim submission procedures results in jurisdictional doom

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The late, great Yogi Berra once said that “Baseball is 90 percent mental. The other half is physical.”  Sometimes it seems as if Yogi’s logic is equally applicable to the claims process in the world of Government contracting, where 90 percent of the early battle is following the correct claim initiation procedures prescribed by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109.

asbcaThe CDA is an indispensable statute that, inter alia, codifies a disputes process for companies wishing to assert claims based on Government acts and/or omissions in connection with a contract to which the CDA applies. Although the CDA is omnipresent in the world of Government contracting, an August 4, 2016, decision by the Armed Services Board of Contract Appeals (Board) highlights the danger faced by contractors who fail to comply with its most basic requirement – i.e., the written submission of a valid “claim” to the Contracting Officer in the first instance. The case is Arab Shah Constr. Co., ASBCA No. 60553, and the facts are straightforward:

  • In March 2011, Arab Shah Construction Company (“Arab Shah”) was awarded a contract for $62,000 to construct a metal pole barn in the village of Mangwal, Afghanistan.
  • On May 23, 2011, the Contracting Officer informed Arab Shah via e-mail that the pole barn was needed in Gardez, Afghanistan, instead of Mangwal, and that the contract would be modified to effect the change in location if Arab Shah could “keep the same price.” Later that day, Arab Shah agreed to the contract modification, but indicated that the change in location would cost “more money.”  In response, the Contracting Officer purportedly pledged to pay Arab Shah’s relocation costs. Although the modification was executed just hours later, it did not provide Arab Shah with any additional funding.
  • On May 26, 2011, Arab Shah paid $19,000 to transport the materials to Gardez.
  • On September 22, 2011, the Government paid Arab Shah $62,224.09 – constituting the $62,000 contract amount plus $224.09 in interest.
  • Arab Shah filed an undated Notice of Appeal (Appeal) that was received by the Board on April 22, 2016. The Appeal stated that Arab Shah “never got the payment for the services” despite the fact that it delivered “all the equipment . . . to the site.”
  • The Government filed a Motion to Dismiss (Motion) the Appeal on May 17, 2016, for lack of jurisdiction. In so doing, the Government argued that Arab Shah “never submitted a claim in a sum certain” to the Contracting Officer.

Keep reading this article at: http://www.mccarter.com/Government-Contractors-Can-Learn-From-Yogi-Berra-Failure-to-Follow-Correct-Claim-Submission-Procedures-Results-in-Jurisdictional-Doom-08-30-2016/

Government cannot make contractors jump through hoops for a final decision

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After filing a claim under the Contract Disputes Act (CDA), the contracting officer may notify you that a final decision will be issued within “X” days after certain pre-conditions are met, such as:

  • Providing additional documentation supporting your claims or damages;
  • Attending a meeting to discuss your claims; or
  • Answering certain question allegedly required for the government’s review of your claim.

Are you required to cooperate?  For claims over $100,000, the CDA requires a contracting officer, within 60 calendar days, to either issue a final decision or notify the contractor of the date by which a final decision will be issued.  The Armed Services Board of Contract Appeals (ASBCA) recently held that a conditional final decision date, as described above, does not comply with this CDA requirement.  Thus, in such instances, a contractor may file an Appeal on a deemed denial basis without waiting for a final decision.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=468776

Software vendors be warned: The old rules may no longer apply to government

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Software vendors take notice: The General Services Administration (GSA) is proposing a new rule regarding something arcane but important.

GSA logoGSA has identified 15 terms and conditions common in commercial supplier agreements that it considers incompatible with existing federal law. And where there is a conflict, government’s own commercial terms rule. It’s designed to save everyone time. Vendors won’t have to comb their contracts for offending clauses — they just can’t be enforced.

For now it applies to any GSA contract that includes software. But don’t rule out the possibility of the rule going governmentwide.

For example, GSA is forcing an end to automatic renewals of period-limited software licenses or maintenance agreements. Instead, ordering agencies will award one-year with renewal options to be negotiated and re-awarded in subsequent years. The legal basis for this is that a contracting officer may not obligate funds that have not been appropriated, lest he or she be found in violation of the Anti-Deficiency Act.

Keep reading this article for a complete description of all the nullified terms and conditions: http://www.bizjournals.com/washington/blog/fedbiz_daily/2015/04/software-vendors-be-warned-the-old-rules-may-no.html

A cautionary tale: Claims must be submitted to the CO first

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As a contractor on a federal project, how often do you interact with the agency’s contracting officer?

Given the state of today’s understaffed acquisition workforce, the answer is probably not very often, if at all. Instead, you more often find yourself dealing with a varied cast of characters during contract performance – including CORs, COTRs, and resident engineers. While these government representatives can act with the authority of the CO under many circumstances, there are certain times when only the CO will do.

One example of a communication that must go directly to the CO is a written claim for time or money under the Contract Disputes Act.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=343048

Contracting officer’s death didn’t waive claim requirement

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A Contracting Officer’s death did not waive the requirement that a contractor file a claim with the agency before bringing its claim to federal court.

In a recent decision, the Court of Federal Claims held that a contractor was not entitled to forego the claim requirement because of the Contracting Officer’s death–even though the agency did not appoint a replacement.

The Court’s decision in Delaware Cornerstone Builders, Inc. v. United States, No. 10-588C (Fed. Cl. 2014) involved a contract between Delaware Cornerstone Builders, Inc. and the VA.  Under the contract, DCB was to replace a VA health care facility in Maryland.

The project reached substantial completion in June 2004.  In 2004, DCB and the Contracting Officer began discussions about additional payments DBC believed to be due and owing.  The parties never reached a resolution, and communications apparently ceased for a period of years.  In September 2006, the Contracting Officer died.

Keep reading this article at: http://smallgovcon.com/claims-and-appeals/contracting-officers-death-didnt-waive-claim-requirement/

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