Category Archives: Claims and Appeals

Realities of Cost Recovery in the Wake of the Federal Shutdown

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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.

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ASBCA: Claim Must Include Request for “Final Decision”

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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.

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New Rule Changes Bring CBCA Procedures Into the Efiling Age

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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.

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

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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

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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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CBCA: Government Also Bound by Six-Year Statute of Limitations

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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.

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Government’s Delayed Response Breached Contract, Says ASBCA

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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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