Why yes, yes you can! In fact, there is a little known provision of the Federal Acquisition Regulations (FAR) that speaks directly to a contractor’s right to request government participation in Alternative Dispute Resolution (ADR) for any contracting “issue in controversy.” And as long as the four essential elements of ADR stated therein are met, a contracting officer must either agree to such ADR or provide a written explanation with cited statutory or legal authority for rejecting the request.
Continue readingTag Archives: Contract Disputes Act
CBCA Cannot Waive Its Own Filing Deadlines
4 C.F.R. 21.2(b) states that, for GAO protests, GAO has the option to dismiss or not dismiss a protest that is filed late if there is good cause or it is an important issue. In other words, if there’s a good reason, GAO can accept an untimely protest. (Please note that this is not suggesting the filing deadline does not matter, GAO treats it very strictly most of the time and you should treat it as a “drop-dead” deadline).
For this reason, some think this same discretion applies in other protests and appeals regarding government contracts. For the Civilian Board of Contract Appeals (CBCA), it very much does not.
Continue readingIncluding Dollar Amount in Claim “Sum Certain”-ly Serious Business
In a recent case, the Armed Services Board of Contract Appeals, dismissed a claim for lack of jurisdiction because it did not include a “sum certain.”
The case is a good reminder of the importance of demanding a specific sum of money for most claims.
Continue readingPrime Contractor Can Sponsor Subcontractor’s Claim to Government
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?
Continue readingCOFC Rejects Agency’s Basis for Default Termination
The Court of Federal Claims recently reversed an agency’s default termination of a contractor that had experienced numerous performance issues and delays. The agency claimed that performance was “incurably behind schedule,” despite the contractor’s proposed recovery schedule.
The court held that the agency lacked a reasonable belief that the contract could not be timely completed.
Continue readingPreparing for Contract Performance . . . and Guarding Against Problems
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.
Continue readingCBCA Rules that Claims Discovered During Appeal Were Not Time-Barred
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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