FOUR REASONS WHY SPECIFICATIONS TAKE PRECEDENCE OVER DRAWINGS

Most construction contractors understand that Federal Acquisition Regulation (“FAR”) 52.236-21, Specifications and Drawings for Construction, specifically states that “in case of difference between drawings and specifications, the specifications shall govern.” This clause is mandatory for use in fixed-price construction contracts over $150,000. FAR 36.521. A recent construction contract not only included FAR 52.236-21, but three other clauses that similarly stated that the specifications took precedence over the drawings. ATI TACOSE S.C.a R.L. (“TACOSE”), ASBCA Nos 59157, 59200, January 4, 2017. These clauses related to two claims for constructive changes by the government. The Navy awarded a contract to TACOSE to design and build a dormitory at Aviano Air Base in Italy. The solicitation did not include a finished design, but rather, a package setting forth … Continue reading

ANOTHER SAD STORY OF MISPLACED RELIANCE ON A CONTRACT SPECIALIST AND IMPROPER EXERCISE OF OPTIONS

This blog has frequently discussed cases supporting the strong principle that the federal government has given the authority to enter into and modify contracts to only a limited class of government employees: namely, contracting officers. Federal Acquisition Regulation (“FAR”) 1.601(a). This section grants to agency heads the authority to contract for supplies and services and requires that “[c]ontracts may be entered into and signed on behalf of the Government only by contracting officers”. Also note that FAR 43.102 states that “Only contracting officers acting within the scope of their authority are empowered to execute contract modifications on behalf of the Government.” Other Government personnel are prohibited from executing contract modifications. Id. See also Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007). … Continue reading

AGENCIES CANNOT PRO-RATE INVOICES UNLESS THE CONTRACT SO STATES

Have you ever had a situation where a Government Agency advised you that it would reduce or pro-rate your monthly services invoice for days not worked, but your company objected and said “that procedure is not in our contract?” The Agency response is frequently: “so what, we’re doing it anyway, you didn’t work those days.” That’s exactly what happened to Amaratek during last year’s Government shutdown. The Armed Services Board of Contract Appeals ruled the Army’s invoice adjustment to be improper, and allowed Amaratek’s claim for a full monthly invoice amount even though only six days were worked. Amaratek, ASBCA No. 59149, 15-1 BCA ¶35808. In Amaratek, the Army awarded the company a contract for laboratory services at the Yuma Proving Ground in Arizona. There … Continue reading

The PCI Network – Ethics in Government Contracting

Understanding the difference between right and wrong isn’t always as easy as you may think. In the Federal Contracting industry, there are important ethical distinctions that can create confusion if you don’t know where to look. Join Fred Geldon, a PCI Director and Faculty, as he explains the importance of ethics in Government Contracting and how to minimize the confusion.

UNREASONABLE POST-PERFORMANCE ACTIONS BY THE GOVERNMENT

In two recent Armed Services Board of Contract Appeals (“ASBCA”) cases, the Board sustained the appeals and found the agency’s post-performance actions to be unreasonable. In one case, Avant Assessment, LLC, ASBCA No. 58866, Sept. 28, 2016, the Army terminated a contract after performance for failing to deliver the “requisite number” of test items, even though the delivery of these items had been deleted by the language of the contract itself. In the second case, HCS, Inc., ASBCA No. 60533, Sept. 20, 2016, the Navy unilaterally reduced the price of the contract by more than 50 percent by deleting work from the contract after that work had been performed. In Avant Assessment, the contract was required to deliver foreign language test items. During performance, a … Continue reading

MUST YOUR CLAIM BE CERTIFIED BY THE PERSON WHO SIGNED YOUR CONTRACT?

The Civilian Board of Contract Appeals (“CBCA”) recently set forth the requirements for a person who signs a contractor’s certification of its claim. AMX Veterans Spec. Servs., LLC v. Dept of Veterans Affairs, CBCA 5180, August 9, 2016. As readers of this blog know, any claim over $100,000 must be certified stating that: • the claim is made in good faith, • the supporting data are accurate and complete to the best of the contractor’s knowledge and belief • the amount requested accurately reflects the amount the government owes • the certifier in authorized to certify the claim on behalf of the contractor. 41 U.S.C. §7103(b). The Federal Acquisition Regulation (“FAR”) states that for requests over $100,000, whatever the contractor submits “is not a claim…until … Continue reading

WILL AN EMPLOYEE STRIKE EXCUSE A DEFAULT? WHAT IS A STRIKE?

The fixed price default clause at Federal Acquisition Regulation (“FAR”) 52.249-8(c) as well as the “excusable delays” clause in commercial item contracts at FAR 52.212-4(f) provide that a contractor shall not be liable for default in the event of “strikes.” The Civilian Board of Contract Appeals (“CBCA”) recently considered how a “strike” should be defined, and whether a default should be excused in the event of a strike. Asheville Jet Charter and Mgt., Inc., v. Dept of the Interior, CBCA 4079, May 19, 2016. Here is what the two default clauses say about strikes. (Excerpts)(emphasis added):—– FAR 52.249-8 (Default (Fixed Price Supply and Service). [T]he Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond … Continue reading

ARE YOU ENTITLED TO AN EQUITABLE ADJUSTMENT?

It is not possible to delineate all situations where a contractor is entitled to an equitable adjustment in price and/or time to perform the contract. However, under the Federal Acquisition Regulation (“FAR”), contractors are eligible for numerous different equitable adjustments arising out of the performance of their contracts and the actions of the government. Typically, a contractor can receive an equitable adjustment for a constructive change, delay or other government caused increase in its costs. It is generally advisable to assert your right to the various equitable adjustments permitted by the FAR. You must comply strictly with the equitable adjustment requirements in the FAR and in your contract. What is an equitable adjustment: Although the FAR defines a claim (see below), it does not define … Continue reading

BEWARE OF GOVERNMENT “BEST EFFORTS” ON OPTIONS

A previous blog, “The Government Controls the Options,” makes clear that contractors cannot demand that the Government exercise an option in the contract, and that the Government has the sole right to exercise or not exercise the option. Two recent cases demonstrate that the contractor will also lose a claim where the government fails to exercise an option, even though both contracts required the government to make “best efforts to obtain funds” for the options. In Mach I AREP Carlyle Center LLC, ASBCA No. 59821, June 1, 2016, Mach I entered into a lease with the Corps of Engineers for office space in the Northern Virginia suburbs of Washington, DC. The lease contained a base year, and nine separate option years, and the Corps was obligated “to … Continue reading

THE GOVERNMENT CONTROLS THE OPTIONS

Virtually all government contract options (for more quantities of goods, or for an extension of services), are generally priced unilateral options which the Government may exercise or not exercise at the Government’s discretion. When it does exercise an option, the Government must follow the requirements in the option clause, but contractors may not successfully complain about the failure of the Government to exercise that option. JRS Management v. Dept of Justice, CBCA 3288 (May 28, 2014) is an excellent example of the Government’s discretion. The JRS contract was for culinary arts instructor services to the Department of Justice for a base year running through Aug. 7, 2012, with four option years. The contract specified certain experience and qualification requirements for each of the instructors. The … Continue reading