Nonmanufacturer Rule Violation Leads To Default Termination

A procuring agency appropriately terminated a small business set-aside contract for default when the SBA determined, after contract award, that the prime contractor was not complying with the nonmanufacturer rule.

A recent decision of the Armed Service Board of Contract Appeals involved a very interesting factual situation, in which the small business in question told the SBA that it planned to perform the contract in compliance with the nonmanufacturer rule, but then failed to do so.  This failure, according to the ASBCA, justified a default termination.

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ASBCA: No Valid Subcontractor Claim Against Government

I sometimes suggest that a government subcontract include a so-called “pass-through” dispute resolution provision, in which the prime contractor agrees to sponsor its subcontractor’s claims against the government.  A recent Armed Services Board of Contract Appeals case demonstrates why pass-through provisions can be so important.

In its decision, the ASBCA held that a subcontractor lacked a valid claim against the government–and therefore, had no ability to pursue relief at the ASBCA.

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No “Sum Certain” Means No Valid Claim, Board Holds

A contractor’s claim against the Government was invalid because the contractor did not demand a “sum certain” in clear and unequivocal terms.

In a recent decision, the Postal Service Board of Contract Appeals held that a contractor’s claim was deficient where the contractor argued that it was up to the government to figure out the amount of the claim using “simple mathematics.”

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CBCA: “Appeal” Sent To Contracting Officer Didn’t Count

A contractor’s challenge to a contracting officer’s final decision was “improperly directed” when it was sent only to the contracting officer, and did not delay the 90-day period in which the final decision could be appealed to the Civilian Board of Contracting Appeals.

As demonstrated in a recent CBCA decision, when a contractor receives a contracting officer’s final decision, the appeals clock starts ticking–and an “appeal” to the contracting officer doesn’t stop the clock.

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ASBCA: Contractor’s Request For Cancellation Was Not A Default

A contractor’s request that the agency issue a “no-cost” cancellation of its contract was not a default–and did not justify the government’s default termination of the contract.

In a recent decision, the Armed Services Board of Contract Appeals held that a contractor did not repudiate its contract by requesting a cancellation because the contractor’s request was not a “positive, definite, unconditional, and unequivocal refusal to perform.”

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Reminder: Requests For Equitable Adjustment Are Not Claims

A request for equitable adjustment is not a “claim” under the FAR.  Although a REA and a claim can look very similar, there are important legal distinctions.

And as one contractor recently learned, the distinction between a REA and a claim can make all the difference when it comes to a potential appeal.

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Government’s Engineers Couldn’t Modify Contract, Says ASBCA

A construction contractor was unable to recover the costs of performing changed work allegedly ordered by the government’s project engineers because the engineers did not have authority to modify the contract.

As demonstrated in a recent Armed Services Board of Contract Appeals decision, only a contracting officer or the contracting officer’s designated representatives may modify a contract, and a contractor bears the risk of non-payment by performing changed work directed by an unauthorized government employee.

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