Congratulations! After a hard bidding process, your company has earned an award. But though this award process might’ve been long and tough, potential issues are still ahead.
In our practice, we often hear stories of soured relationships with the government during contract performance. Adverse performance issues can come at a hefty cost—in terms of money, time, and reputation.
Here are some suggestions to help guard against performance disputes with the government.
First, it’s vitally important to review your contract carefully before signing. This idea seems simple, but it’s often overlooked. Sometimes, a final contract might not incorporate important aspects of an offer or might even tweak the performance from what was included in the solicitation. Know what you’re agreeing to before you agree to it—if necessary, propose amendments to the contractual language to clarify the terms or performance requirements; otherwise, it might be hard to dispute the terms down the road.
Second, take great notes and keep detailed records as you’re performing the contract. Having contemporaneous documentation will help in the event of any dispute over performance.
Obviously, the scope of notes will depend on the work being performed. If you’re performing a construction contract, consider taking photos of the site every day. You might also have daily logs that document site conditions (including the weather), any work impediments, and the scope of daily performance. For general services contracts, maybe have a daily log sheet that documents your performance and difficulties encountered. You might also consider retaining records of all hours worked by employees and subcontractors.
Regardless of the type of contract, conversations with the agency about performance should be documented. Take (and review!) objective, non-self-serving meeting minutes, and send emails documenting conversations. Having a written record of conversations will be helpful for any potential issue.
Importantly, immediately inform the contracting officer of any delays or changed/differing conditions that might affect your performance. If these issues might impact your price, you can let the agency know that too. But because your ability to claim delays or damages down the road might be impacted by notice to the government, it’s usually best to keep the agency as informed as possible.
Third, and along these same lines, make sure your contracting officer informed of what’s going on with the project. Again, this seems like an obvious suggestion. But oftentimes, a contracting officer might be located offsite, while the contracting officer’s representative is on location. As a result, your day-to-day interaction may be with the COR.
Oftentimes, a COR’s proximity to the project might compel her to request changes to your performance. Only a contracting officer, however, has the authority to order changes to the contract. So if you’re requested to make any changes by someone other than the contracting officer, consider sending a brief email to the contracting officer asking for permission to proceed; if you don’t, you might be left holding the bag for costs associated with this additional work.
These suggestions are generalized ideas, based on our experiences. Of course, each contract and every situation are different, so there could also be unique issues worth considering. But no matter the circumstances, it’s important to guard against any potential disputes: the more prepared you are, the easier it’ll be to reach a favorable resolution.
If you have any questions, please give me a call.