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.
Shuttering of the government (or parts of the government) following appropriations lapses has become an increasingly common phenomenon in recent years. Funding lapses interrupt the usual predictability of government operations, which is often to the detriment of both agencies and federal contractors that are left in proverbial limbo with stop work orders.
Unfortunately, unlike many other topics, the FAR does not substantively address procedures for contractors during or following a government shutdown. As such, recovering expenses incurred as a consequence of government shutdowns can be challenging.
Here are some pointers.
As we discussed in July 2017, Timberline Helicopters, Inc. has been involved in ongoing litigation regarding the Department of the Interior, Bureau of Land Management’s (a.k.a. “BLM”) procurement of helicopter flight services to aid in fire-fighting and fire-suppression missions, services essential now more than ever.
Most recently, in Timberline Helicopters, Inc. v. United States, No. 18-1474C (Fed. Cl. Nov. 14, 2018), the Court of Federal Claims held that Timberline no longer had standing to bring its claims.
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.
On August 17, 2018, the Civilian Board of Contract Appeals (CBCA) issued new procedural rules which go into effect Monday, September 17, 2018. The substantial overhaul of the former rules intends to bring the CBCA into the 21st century by emphasizing, adding, and clarifying rules about electronic filing.
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.
A contractor has many requirements when submitting a claim against the federal government. But the government must also abide by some of the same rules.
Case in point, a recent Civilian Board of Contractor Appeals case affirms that the government is bound by the same six-year time limit to file a claim against a contractor that a contractor has to file a claim against the government.