Recently, there’s been a lot of discussion about the fact that the GAO bid protest “effectiveness rate” was a sky-high 47% in FY 2017.
But, somewhat under the radar, contractors did even better at the Armed Services Board of Contract Appeals. According to the ASBCA’s annual report, contractors prevailed (in whole or in part) in 57.6% of FY 2017 ASBCA decisions.
Although a lease may be a “contract” in common parlance, does a lease qualify as a contract under the Contract Disputes Act?
The answer is important, because the Contract Disputes Act provides jurisdiction for the Court of Federal Claims and Board of Contract Appeals to decide challenges to contracting officers’ final decisions. If a lease isn’t a contract under the Contract Disputes Act, government lessors could be in a bind.
The United States Court of Federal Claims recently decided the issue–and came down on the side of lessors, at least under the facts at hand.
A contractor did not file a proper certified claim because the purported “signature” on the mandatory certification was typewritten in Lucinda Handwriting font.
A recent decision of the Armed Services Board of Contract Appeals highlights the importance of providing a fully-compliant certification in connection with all claims over $100,000–which includes, according to the ASBCA, the requirement for a verifiable signature.
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.
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.”
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.
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.