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.
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.
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.
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.
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.