Government’s Default Termination Threat Was Improper Coercion, Says ASBCA

The Government improperly threatened to terminate a contractor for default, because there was no good reason to believe the contractor had actually defaulted.

In a fascinating new decision by the Armed Services Board of Contract Appeals, the Government’s threat–made to a contractor with cash-flow issues–amounted to coercion, and invalidated a settlement agreement that awarded the contractor much less than it probably should have received.

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CO Identifies Wrong Appeals Board, Appeal Dismissed Anyway

An Air Force Contracting Officer, asked by a contractor where to send an appeal, provided the contractor with information about the Civilian Board of Contract Appeals, not the Armed Services Board of Contract Appeals.

Despite the Contracting Officer’s erroneous advice, the CBCA dismissed the appeal for lack of jurisdiction.

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Government’s Delayed Response Breached Contract, Says ASBCA

Here’s a situation my colleagues and I see with some frequency: a contractor, in the course of working on a government contract, submits a request of some sort to the agency.  Then waits for a response.  And waits some more.  Meanwhile, the government’s delay in responding prevents the contractor from moving forward with some aspect of the project, causing the contractor to incur costs.

For contractors faced with this type of government inaction, a recent decision by the Armed Services Board of Contract Appeals is welcome news.  In that case, the ASBCA held that the government breached its implied duty of good faith and fair dealing by waiting more than three months to respond to the contractor’s request to amend the Statement of Work–allowing the contractor to “twist in the wind” during that period.

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ASBCA Appeals: Contractors Prevailed In 57.6% of FY 2017 Decisions

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.

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Is A Lease A CDA “Contract?” Federal Circuit Says Yes

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.

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ASBCA: No Valid Claim Certification Where “Signature” Was Typewritten

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.

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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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