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Claims Against Gov’t

Attorneys - Government Contracts - Claims Against Federal Government

Our Government contract lawyers have experience practicing before the Court of Federal Claims, Armed Services Board of Contract Appeals, Civilian Board of Contract Appeals and GAO.  We are pleased of our track record - many of our cases are successfully settled.

Government contract lawyers at our firm are ready to assist contractors confronted with a government contract dispute.  An immediate effort is made to gather the facts and develop a strategy based on federal procurement regulations.

A dispute between the government and a contractor can arise in a variety of situations.  This includes inability to agree upon change order work, disagreements over contract interpretation, claims for delays, threats to termination and other issues.  The three (3) principal means of disputes resolution between the contractor and the government:

  1. Alternate Dispute Resolution ("ADR")
  2. Appeal of a Contracting Officer's Final Decision to the Board of Contract Appeals
  3. Litigation before the United States Court of Federal Claims ("COFC")

Contracting Officer’s Final Decision

When a contractor’s claim cannot be resolved with the Contracting Officer, the Contracting Officer shall prepare a Final Decision pursuant to FAR 33.211.  The Contracting Officer has a duty to impartially and objectively render a final decision.  This duty has been compared to an impartial, unbiased judge.  Penner Installation Corp. v. United States, 116 Ct. Cl. 550 (1950)  A Contracting Officer who follows a decision of his superiors without making a personal and independent judgment on the merits is invalid.  John A. Johnson Contracting Corp. v. United States, 132 Ct. Cl. 645 (1955)

The Contracting Officer’s Final Decisions shall describe the claim or dispute; refer to the pertinent contract terms; state the factual areas of agreement and disagreement; and set forth the Contracting Officer’s decision, with its supporting rationale (FAR 33.211(a)(4)).

Final Decisions shall also include notification that the contractor may appeal the decision to the Board of Contract Appeals within 90 days or the COFC within 12 months of receipt of the final decision.  FAR 33.211(a)(4)(v) provides wording for the notification of the contractor’s appeal rights. Contracting Officers shall send Final Decisions to the contractor in a manner that provides evidence of receipt (such as certified mail, return receipt requested) (FAR 33.211(b)).

Where a contractor has requested in writing that a decision be rendered within 60 days, any failure of the Contracting Officer to issue a Final Decision within that period may be deemed a decision denying the claim and will authorize the contractor to file an appeal upon the claim (FAR 33.211(g)). In claims exceeding $100,000, Contracting Officers shall issue a Final Decision within 60 days or provide a written notification within 60 days as to when such a decision will be issued (after consultation with assigned legal counsel) (FAR 33.211(c)(2)). The Contracting Officer shall issue a Final Decision within a reasonable time (FAR 33.211(d)).

Duty to Proceed Despite a Contract Dispute

A Contractor must continue performance despite an ongoing dispute with the federal government.  Often referred to as the "duty to proceed" this can impose severe financial hardship on a contractor who is forced to carry the costs of changes or delays while the Government refuses to pay.   Under no circumstances should the contractor  abandon performance.  This will result in a termination for default and could expose the defaulted contractor to excess reprocurement costs.

Six Year Statute of Limitations

There is a six-year statute of limitations on contractor and government claims.  See FAR 33.206. “Initiation of a Claim,” which states:

(a)       Contractor claims shall be submitted, in writing, to the contracting officer for a decision within 6 years after accrual of a claim, unless the contracting parties agreed to a shorter time period. This 6-year time period does not apply to contracts awarded prior to October 1, 1995. The contracting officer shall document the contract file with evidence of the date of receipt of any submission from the contractor deemed to be a claim by the contracting officer.

(b)    The contracting officer shall issue a written decision on any Government claim initiated against a contractor within 6 years after accrual of the claim, unless the contracting parties agreed to a shorter time period. The 6-year period shall not apply to contracts awarded prior to October 1, 1995, or to a Government claim based on a contractor claim involving fraud.

 

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