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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ASBCA Appeals: Former Employee Could Not Represent Contractor

A former employee could not represent a contractor in an appeal filed with the Armed Services Board of Contract Appeals, even though the contractor’s owner had asked the former employee to serve as its representative.

In a recent decision, the ASBCA reiterated that, under its rules, a corporation must be represented by an officer or an attorney.  A former employee does not qualify.

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Ordinary, Undisputed Invoices Are Not “Claims”

For an invoice to be considered a claim under the Contract Disputes Act, thereby giving the U.S. Court of Federal Claims jurisdiction to consider an appeal of the government’s failure to pay, the contractor must establish that the invoice was in dispute at the time it was submitted to the government.

As demonstrated in a recent Court decision, ordinary, undisputed invoices are not “claims” under the Contract Disputes Act.

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Contracting Officer’s Death Didn’t Waive Claim Requirement

A Contracting Officer’s death did not waive the requirement that a contractor file a claim with the agency before bringing its claim to federal court.

In a recent decision, the Court of Federal Claims held that a contractor was not entitled to forego the claim requirement because of the Contracting Officer’s death–even though the agency did not appoint a replacement.

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DFARS Clause Problem Costs Contractor $288K

A contractor’s failure to follow the requirements of DFARS 252.232-7007 (Limitation of Government’s Obligation), also known as the “LOGO” clause, resulted in the contractor performing more than $288,000 in free work for the government.

The contractor’s dilemma is an important reminder to be aware of–and scrupulously comply with–the LOGO clause and similar FAR clauses.

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Government Rejects Contractor’s Bills for Flowers, Hunting Club, Jazz

Roses are red, violets are blue–and a government contractor can’t bill Uncle Sam for either one, according to a recent decision of the Armed Services Board of Contract Appeals.

In Thomas Associates, Inc., ASBCA No. 57795 (2012), the ASBCA rejected a contractor’s claim that it was entitled to stick the government with a variety of costs I will charitably describe as “questionable,” including a hunting club membership, jazz ensemble, a lavish Christmas party, and yes, flowers given to employees, ostensibly to boost morale.

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