ASBCA Awards Contractor Compensation for Extra-Contractual Changes

Contract changes, particularly in the construction context, can be flash points for the Government and a contractor. In some cases, the Government will assert that the contract requires the contractor to perform certain work; the contractor, pointing to the same (or another) contractual provision, will argue that the contract does not require it. These diverging positions can often lead to contentious litigation.

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2020 NDAA: Contractors Supplying Technical Data to Receive Protection of Data Rights During Challenges, Again

The draft 2020 National Defense Authorization Act, if enacted, will revoke the government’s ability to exercise rights in technical data during a supplier’s challenge to the contracting officer’s decision as to the validity of the asserted “use or release restrictions” on that data. It would reinstate the previous safeguard afforded to data suppliers, allowing them to protect their valuable–and often irreplaceable–intellectual property rights unless and until the contracting officer’s decision to remove the restrictions is sustained.

Keep in mind, this is just a draft provision, as the Senate version of the 2020 NDAA doesn’t contain the provision discussed in this blog.

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If You’re Working on a Military Installation, Don’t Lose Your Base Access

In the classic 1993 movie Gettysburg, Colonel Joshua Chamberlain, a great American hero (played by Jeff Daniels), commented on the power wielded by military commanders, particularly generals: “Generals can do anything. Nothing quite so much like God on Earth as a general on a battlefield.”

It turns out that this power extends to actions that might affect your Government contract. For instance, a base commander can revoke a contractor’s access to the base; if that happens, and the contract required the contractor to maintain base access eligibility, the Government can rightly terminate the contract for default.

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ASBCA: Claim Must Include Request for “Final Decision”

As readers of this blog might know, the government contracts claims process is set by statute and includes a number of requirements, such as being certified if the dollar amount is over $100,000.

But a possibly lesser-known requirement is that, in order to be valid, a claim must request that the contracting officer issue a “final decision” on the claim. In a recent decision, the Armed Services Board of Contract Appeals opined on this requirement.

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Government Damages Contractor’s Equipment, Board Awards Costs

When a contractor leases equipment to the government, the contractor typically expects that the government will take good care of that equipment.  But a recent Armed Services Board of Contracts Appeals case reveals the government does not always take such proper care of leased goods or equipment.

What happens then? Well, the contractor may be able to recover damages under the contract and common law principles.

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Release of Claims: Contractor Signatory Must Have Authority

What goes around, comes around.

The government sometimes refuses to pay a contractor for a modification when the government official requesting the modification lacks appropriate authority.  But contractual authority isn’t a one-way street benefiting only the government.  A recent decision by the Armed Services Board of Contract Appeals demonstrates that a contractor may not be bound by a final waiver and release of claims if the individual signing on the contractor’s behalf lacked authority.

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Excusable Delay: Government’s Failure To Extend Was “Constructive Acceleration”

Federal contractors not so infrequently find themselves in a position where they are unable to complete performance of a contract by the agreed-upon deadline. So, what happens when the delay is neither party’s fault, but the government denies extension of the period of performance or provides inadequate extensions?

In IAP Worldwide Services, Inc. (ASBCA Nos. 59397, 59398, and 59399), the Armed Services Board of Contract Appeals found under the legal theory of “constructive acceleration” that the U.S. Army Corps of Engineers was liable for extra costs incurred by IAP due to the Corps insistence of timely contract delivery despite excusable delays.

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