“DEFECTIVE” CLAIM CERTIFICATION OR “NO CLAIM CERTIFICATION”

In a recent Civilian Board of Contract Appeals case, Development Alternatives, Inc. v. Agency for Int’l Dev., CBCA 5942 et. al, September 27, 2018, the Board considered an appeal of a claim for $1.9 million for security services in Afghanistan. Holding that it had no jurisdiction of the claim because of lack of certification, the Board dismissed the case. The problem was a simple one, where the contractor never certified its initial claim to the contracting officer, even though it submitted a certification after the appeal was filed at the Board. Here’s the basis for this decision, and some recommendations on how to avoid the problem. The Contract Disputes Act of 1978, codified at 41 U.S.C. § 7103 requires that all claims of more than … Continue reading

CAN A RUBBER STAMPED SIGNATURE BIND A CONTRACTOR?

Is a rubber stamped signature of the President of a company on a release of claims valid? The Civilian Board of Contract Appeals, under the facts in Penna Group, LLC v. Dept of Justice, CBCA 6155, Sept. 27, 2018, held that it was a valid release after completion of a roofing contract. The Federal Bureau of Prisons (part of the Department of Justice) awarded a roofing contract to Penna Group. Upon completion of the work, the agency provided Penna with a completed release of claims form that released the United States from any and all claims arising under the contract or any modification or change, with the word “NONE” to identify the claims excluded by the contractor. Penna returned the document with the stamped signature … Continue reading

ALLEGED “FINAL CONTRACTING OFFICER DECISION” DOES NOT CURE ABSENCE OF REQUIRED CERTIFICATION

The Armed Services Board of Contract Appeals recently considered a contractor’s claim for $381,000 for the return of liquidated damages as well as a time extension. Areyana Group of Const. Co., ASBCA No. 60648, May 11, 2018. The Board held that even though a project manager had sent Areyana a document which was described as “the final decision of the Contracting Officer” and notified the company of its appeal rights, there was no claim to appeal, and the appeal was dismissed. Areyana was awarded a contract to design and construct barracks for the Afghan National Police. It did not complete the project in a timely manner. The government withheld $381,000 for liquidated damages, and Areyana submitted two “requests for equitable adjustment” for time extensions and … Continue reading

FINAL SIGNED RELEASE BARS FUTURE CLAIMS

Once again, a contractor was barred from raising future claims on a contract where the same contractor had executed a final release that included no reservations or exceptions, the government had made final payment, and none of the limited situations for re-opening the contract to a claim applied. “Unnamed” (Redacted name) Contractor, ASBCA No. 61065, Nov. 14, 2017. The Unnamed contractor was awarded a $1.9 million contract to construct and provide building upgrades for the Afghan Police Headquarters. The construction was inspected, accepted and deemed complete by the Government on November 4, 2013. On the same day, Unnamed submitted an invoice that specifically released and discharged the Government from all liabilities, obligations, and claims arising out of or by virtue of the contract, except specified … Continue reading

HOW TO SIGN YOUR CLAIM AND CERTIFICATION

The Contract Disputes Act of 1978 (“CDA”) contains a few simple requirements for claims over $100,000, including certification. Yet to this day contractors have consistently violated the certification requirements and, as a result, had their claims dismissed by the Boards and Courts. This happened most recently in NileCo Gen’l Contracting, LLC, ASBCA No. 60912, Sept. 22, 2017. It seems as if a technology-crazed world sometimes refuses to use the most low-tech machine of all—the pen—because the pen is just not electronically convenient. Hopefully, government contractors will read this blog. The CDA states that each claim for more than $100,000 must be certified to state that: The claim is made in good faith; The supporting data are accurate and complete to the best of the contractor’s … Continue reading

DISMISSAL OF AN INCOMPLETE (IMPROPER) CLAIM OR APPEAL

A recent Armed Services Board of Contract Appeals (“ASBCA”) decision is a strong reminder that contractors must submit complete and proper claims, or they will be dismissed by either the Contracting Officer or a board or court, if appealed to one of those forums. Andrews Contracting Services, LLC, ASBCA No. 60808 (May 22, 2017). Andrews submitted to the Contracting Officer a “Request for Equitable Adjustment” for $292,797.51 in connection with its contract. The REA contained a certification required by the Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.243-7702 where the contractor’s President certified that “the request is made in good faith and that the supporting data are accurate and complete to the best of my knowledge and belief.” The Contracting Officer denied the REA three months … Continue reading

CONSTRUCTIVE ACCELERATION

Constructive acceleration occurs when the government demands the contractor’s compliance with an original contract deadline even though there is excusable delay. This is precisely what happened in IAP Worldwide Svcs, ASBCA no. 59397 et al, May 17, 2017. A contractor is entitled to compensation for additional costs that result from the constructive acceleration. In IAP, the Army Corps of Engineers issued three delivery orders to provider power plants at forward military bases in Pakistan. The delivery orders incorporated IAP’s proposal which made it clear that IAP would ship the power plants via surface transportation, using what was called the “Pakistan route.” Before the shipments were due, in response to U.S. combat operations, Pakistan closed the Port of Karachi and the land routes from that city … Continue reading

CONTRACTOR CAN SEEK PAYMENT FOR WORK THAT WAS INVOICED AND ACCEPTED PRIOR TO DEFAULT TERMINATION

Claude Mayo Construction Company, Inc. (“Mayo”) had a contract with the General Services Administration (“GSA”) to renovate a U.S. Attorney’s Office in Syracuse, NY. Before Mayo completed the project, GSA terminated the contract for default. Mayo sought to overturn the default, which is not the subject of this appeal. However, Mayo also sought damages for a breach of contract because GSA, without basis, failed and refused to pay Mayo for work completed and accepted by GSA prior to the default termination. Claude Mayo Const. Co., Inc., No. 15-1263C (Fed. Cl. June 23, 2017). GSA sought to dismiss the breach of contract, asserting failure to state a claim. The government alleged that Mayo failed to identify a duty arising from the contract or a breach of … Continue reading

A COMMON SENSE ANALYSIS OF WHAT IS A CLAIM

How many contractor demands for payment make a claim? The Contract Disputes Act (“CDA”) requires that “each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(1). The Federal Acquisition Regulation (“FAR”) includes the same requirement at FAR 33.206. While the CDA itself does not define claim, the FAR does, as follows: “‘Claim’ means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the … Continue reading

FIRST ARTICLE DOES NOT REDEFINE CONTRACT SPECIFICATIONS FOR ACCEPTANCE

In a long and complex case, the Armed Services Board of Contract Appeals (“ASBCA”) recently explained that a First Article Test (“FAT”) does not add product specifications above those detailed in the contract, and that in order to reject production articles, the government must demonstrate that they are unacceptable because they do not meet specifications in the contract. Ensign-Bickford Aero. & Def. Co., ASBCA No. 57929, Oct. 20, 2016. The case involved MK 154 detonators procured by the Naval Surface Warfare Center. The MK 154 is used to explode charges from a safe distance. Explosive ordnance disposal personnel use the MK 154 to blow up improvised explosive devices (“IEDs”), suspect items, or unserviceable ammunition under controlled conditions. Ensign’s contract contained a detailed Technical Data Package … Continue reading