Government Claim Appeals Nuggets from the ASBCA and CBCA 2023 Annual Reports

Everyone has New Year traditions. Some do resolutions, some take vacations, some simply buy a fun new calendar. Here at SmallGovCon we like reading the different federal contracting annual reports. These annual reports function as almost yearbooks or like a friend’s yearly holiday card that discusses all the highlights of the past year. These annual reports are a great resource for contractors to catch up on what a specific agency or tribunal has been up to, and plan for the year ahead. In this quick review of the CBCA and ASBCA’s annual reports, we will cover some of those takeaways. Who knows, maybe in reading this post, you can find something that gives you your own federal contracting new year’s resolution.

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Not All Claims That Wander Into the ASBCA Will Be Heard

Some times it’s easy to forget that the world of government contracting, including the many agencies which oversee its administration, exist within an overarching federal system of delegated powers, which comes to bear on the outcome of disputes.

The Armed Services Board of Contract Appeals receives its authority from sections of the Contract Disputes Act, and exists primarily as a neutral, independent forum to hear and decide post-award contract disputes between government contractors and certain government agencies, but its power to hear cases is limited. The Board recently issued a decision with a reminder that it does not have jurisdiction over requests for specific performance or injunctive relief.

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Prime Contractor Can Sponsor Subcontractor’s Claim to Government

Let’s say you’re a subcontractor to a prime contractor, which holds a construction contract with the Government. And you run into problems which need to be solved by submitting a claim to the contracting officer.

But, as the subcontractor, you don’t have a contractual relationship (privity of contract, in legal speak) with the Government. Can you still submit the claim?

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Federal Government Contractors Can Use Electronic Signatures for Claim Certifications, ASBCA Says

Despite technological advance, some (perhaps even you) still cling to the notion that a signature, written by a human hand, is the only official kind. In other words, if a person doesn’t personally affix his “John Hancock” in cursive script or some other creative form, then the document really isn’t signed.

If this thought sounds familiar, we’re here to liberate you. You are no longer bound like a medieval prisoner to your tube filled with ink. You can use an electronic signature in your contract work with the U.S. Government, including certifications connected to claims submitted under the Contract Disputes Act.

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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 sometimes lead to contentious litigation.

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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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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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