Let’s say you’re a subcontractor to a prime contractor, which holds a construction contract with the Government. And you run into problems which need to be solved by submitting a claim to the contracting officer.
But, as the subcontractor, you don’t have a contractual relationship (privity of contract, in legal speak) with the Government. Can you still submit the claim?
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.
Contract changes, particularly in the construction context, can be flash points for the Government and a contractor. In some cases, the Government will assert that the contract requires the contractor to perform certain work; the contractor, pointing to the same (or another) contractual provision, will argue that the contract does not require it.
These diverging positions can sometimes lead to contentious litigation.
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.
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.
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.
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.