Not Reading the PWS is a Bad Idea, ASBCA Confirms

Here at SmallGovCon, we often write about nuanced, complex government contracting legal issues.  This isn’t one of them.

The moral of today’s story comes straight from the personal superhero files of Captain Obvious: not reading the performance work statement in your own contract is a pretty bad idea.

The PWS at issue in Sterling Design, Inc., ASBCA No. 61099 (2017) was part of a contract between the Air Force and Sterling Design, Inc.  Under the contract, SDI was to repair a power supply unit for a fixed price of $7,395.  The contract gave SDI 30 days from receipt of the power unit to complete the repairs.  However, SDI did not complete the repairs until several months after the 30-day period had elapsed.

SDI then filed a claim for $5,925, alleging that the government had delayed SDI’s work.  The contracting officer denied the claim, and SDI appealed to the Armed Services Board of Contract Appeals.

At the ASBCA, SDI introduced a whopping 893 pages of emails with governmental officials.  The crux of SDI’s argument was that the emails represented SDI’s attempts to obtain necessary contractual information, and that the government delayed the contract either by failing to respond to these emails, or by responding late.

The problem?  The information SDI sought in its emails was already contained in the PWS.  Although SDI asserted at various times that it either didn’t have the PWS, or didn’t have a complete copy, the Air Force provided the ASBCA with evidence that it had transmitted the entire PWS to SDI before the 30-day performance period began.

The ASBCA wrote that “[w]hile it appears that Air Force contracting officials could have responded to [SDI’s owners’] inquiries more quickly, most or all of his questions would have been answered if he had simply read the PWS.”  The ASBCA denied the appeal, holding “SDI has failed to prove that the government delayed the contract.”

As a government contracts attorney, I’ve often seen a variation on what happened in Sterling Design: contractors, eager to get to work, sometimes read only the PWS and skip past those boring (but essential) FAR clauses and other legal mumbo jumbo elsewhere in the contract.  Skipping the legalese is, of course, a bad idea, too–but Sterling Design is the first time I’ve heard of a contractor skipping the PWS.

I guess there’s a first time for everything.