Category Archives: Claims and Appeals

ASBCA Awards Costs Incurred Before Notice to Proceed

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Your newly awarded government contract requires you to move significant amounts of equipment prior to receiving a Notice to Proceed (NTP). You spend thousands of dollars moving equipment and people into place so you are ready to perform once the NTP is issued. But what if instead of issuing the NTP the agency cancels your contract? Are you out all of the costs incurred to prepare for the NTP?

Not necessarily. The Armed Services Board of Contract Appeals recently reviewed just this situation and awarded a significant amount to the contractor.

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If You’re Working on a Military Installation, Don’t Lose Your Base Access

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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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Preparing for Contract Performance . . . and Guarding Against Problems

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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.

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Landmark ASBCA Decision Means Government Can be Bound to Commercial Computer Software Licenses It Hasn’t Even Seen

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The FAR generally favors the Government clients’ entitlement to data and software rights in federal procurements. This has commonly—and understandably—led to disgruntled contractors who didn’t realize what they were truly giving up when they opted to use their own software in performance of contracts without including regulation-compliant markings and protections.

But recently—thanks to a first-of-its-kind decision by the ASBCA—it seems the tide may have turned in favor of protecting these contractor-inventors from the standard Government windfall in its data rights acquisitions.  Let’s take a closer look.

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CBCA Rules that Claims Discovered During Appeal Were Not Time-Barred

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The Contract Disputes Act requires a contractor to present a claim to the contracting officer “within 6 years after the accrual of the claim.” 41 U.S.C. 7103(a)(4)(A). But a claim doesn’t typically accrue until the contractor should have known that it was damaged by the Government.

As discussed below, some legal claims might not arise until a contractor takes discovery in an appeal already before the Civilian Board of Contract Appeals.

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COFC Dismisses Claim for Failure to State Dollar Amount, Despite Claimant’s Attempt to Camouflage Claim

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A government contractor must include certain details in a certified claim, including a sum certain, signature, and a request for a final decision. With regards to the “sum certain,” a contractor cannot avoid this requirement by attempting to portray its claim as one not for monetary relief, when the contractor is really just asking for money.

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Don’t File an Appeal with CBCA Before Filing a Claim with the Contracting Officer

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Let’s suppose that, under your contract, an agency hasn’t properly paid for your work. Or the agency took actions that caused you damages. Can you run off to the Civilian Board of Contract Appeals to register your complaint and recovery your money?

Yes . . . if you’ve taken an important preliminary step: filing a claim with the contracting officer.

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