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

A TALE OF TWO APPEALS

This blog discusses two contractors who sought to appeal a contracting officer’s final decision on their claims, which final decisions were defective in not advising of the contractors’ appeal rights. In one case, the appeal date was tolled because the contractor detrimentally relied on the omission of appeal rights. Access Personnel Servs., Inc., ASBCA No. 59900, June 15, 2016. In the other case, the defective appeal notice did not cause prejudice to the contractor, who had actual knowledge of its appeal rights, and a late filed appeal was dismissed for lack of jurisdiction. Mansoor Int’l Dev. Servs., ASBCA Nos. 59466 et al. May 19, 2016. The Contract Disputes Act requires that a contracting officer’s final decision on a claim state the reasons for the decision … Continue reading

POSTAL SERVICE CONTRACT BOILERPLATE MAY BE UNENFORCEABLE AND CONTRARY TO PUBLIC POLICY

In a recent decision by the Court of Federal Claims, the Court refused to dismiss a case over a terminated U.S. Postal Service (“USPS”) delivery contract, holding that three provisions in the contract were likely contrary to public policy. Tabetha Jennings v. United States, No. 14-132C (Fed. Cl. May 26, 2016). The Court ordered the USPS to show cause why three boilerplate sections should not be deemed unlawful and unenforceable, and ordered the General Counsel of the USPS to appear at a hearing on this matter. Tabetha Jennings appealed the default termination of her $34,000 per year contract to deliver mail. The Contracting Officer found that Ms. Jennings had conducted herself in an unprofessional manner and disrupted mail processing operations, and then permanently denied Ms. … Continue reading

CLAIM DOES NOT ACCRUE UNTIL “SUM CERTAIN” IS KNOWN BY CONTRACTOR

The Federal Circuit recently clarified that a contractor’s claim does not accrue until the exact amount (“sum certain”) of the claim is known to the contractor. Kellogg Brown & Root Serv., Inc. v. Murphy, No. 2015-1148 (Fed. Cir. May 18, 2016), 2016 WL 2893218. This case is important because any dollar claim that fails to include a “sum certain” should be dismissed by the contracting officer and the courts. First, a brief discussion of accrual of claims, and definition of a claim. The Contract Disputes Act provides that a claim “shall be submitted within 6 years after the accrual of the claim.” 41 USC § 7103(a)(4)(A). The FAR defines accrual of a claim as follows: “the date when all events, that fix the alleged liability … Continue reading

DON’T BECOME A VOLUNTEER WHO ISN’T PAID FOR YOUR WORK

Do you know what a government contract volunteer is? A volunteer is someone who embarks on duties of their own free will and without any expectation that they will be paid for their work. A contractor who elects to perform work not required by a contract without a formal change order is considered to be a volunteer who will not be paid for the services. [1] Is it not only small businesses that fall into the trap of becoming an unpaid volunteer. Even one of the largest aerospace companies in the U.S. (Boeing) became a volunteer and failed to get paid for subcontractor work.[2] Boeing had a cost plus award fee contract to perform engineering assignments as ordered by the government. The contract included FAR … Continue reading