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.
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?
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.
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.
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.
Although a lease may be a “contract” in common parlance, does a lease qualify as a contract under the Contract Disputes Act?
The answer is important, because the Contract Disputes Act provides jurisdiction for the Court of Federal Claims and Board of Contract Appeals to decide challenges to contracting officers’ final decisions. If a lease isn’t a contract under the Contract Disputes Act, government lessors could be in a bind.
The United States Court of Federal Claims recently decided the issue–and came down on the side of lessors, at least under the facts at hand.