Failing to meet this deadline can also have a grave impact to thousands or even millions of dollars of contractual claims. Timing may be dispositive for a contractor in determining which forum to file its appeal of the contracting officer's decision. But it sure makes doing so more difficult. Read more information about filing a contract claim against the government. This is particularly true when the government has indicated flexibility on the issue and a willingness to reach an amicable resolution. After a contractor receives a final decision by a contracting officer regarding its claim, the contractor may choose to appeal the final decision to the Court of Federal Claims or the BCA that has jurisdiction over its contract. A mere notification by a contractor notifying a contracting officer of an issue or an amount the contractor believes it is entitled to does constitute a claim under the CDA. Claims asserted by the government are not required to be certified under the CDA. Although the term "equitable adjustment" appears in the FAR in 111 places, and the term "request for equitable adjustment" appears in 11 places, there is no official definition, in the FAR or anywhere else, of the terms "Request for Equitable Adjustment" or "REA. " On the other hand, contractors should avoid falling into endless letter writing and negotiations. Depending on the nature of the warranty provision contained in the contract, an agency can pursue certain remedies for defective services or products. Can a contractor submit a claim by email id. Companies sometimes find themselves in situations when calculating the statute of limitations for filing a contract claim against the government.
Oftentimes, the government may try to file a motion to dismiss if can argue that the email does not meet the statutory contract claims appeal and agency notification requirement. The government could also seek to suspend or debar the contractor from future contracting with the government. Claims on construction projects are unpleasant, but sometimes unavoidable. To appeal a contracting officer's decision before the Court of Federal Claims, the contractor must file a complaint setting forth the factual and legal basis for its claims. It did so by incorporating FAR 52. Can a contractor submit a claim in writing by e-mail. 17% of government contract claims will be denied. Since the contractor did not dispute that it had received the email on the amount owed, the court found that notice was sufficient. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100, 000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act. "
The duty to resolve the conflict between the payment instructions in the CCR file and those in the vice-president's email fell on Aspen, not the Army. The Contract Disputes Act: What Every Federal Government Contractor Should Know. A contractor must file its appeal with the BCA within ninety (90) days of receipt of the contracting officer's final decision. Under the circumstances, the Board concluded that it was reasonable to honor the vice-president's email request. There are a number of clauses that allow an equitable adjustment to the contract if the government is responsible for additional costs, or time, and the most significant clauses are: Variation in Estimated Quantity, FAR 52. During the first year of Aspen's performance, the government released twelve progress payments to the Bank of America account.
The Agency will argue that your contract claims are time barred pursuant to the Contract Disputes Act, 41 U. This is particularly important in this era of supply chain problems that are making it harder for manufacturers to find all the parts they need in a timely fashion. Many government contracts have specific warranty provisions which give the government rights after acceptance of the services or products provided by the contractor and can place liabilities on the contractor. B) The contracting officer shall issue a written decision on any Government claim initiated against a contractor within 6 years after accrual of the claim, unless the contracting parties agreed to a shorter time period. If the demand letter states that it constitutes the contracting officer's final decision and notifies the contractor of its appeal rights to the Court of Federal Claims (COFC) or a board of contract appeals (BCA), it qualifies as a final decision under the Contract Disputes Act (CDA). A contractor may appeal the entirety of the contracting officer's final decision or some portion thereof. In a lawsuit on the payment bond, the surety argued that the email sent by the sub-subcontractor was not sufficient notice of the claim. Having a fax certification notice of sending the appeal notice could be more persuasive to the Board of Contract Appeals. This 6-year time period does not apply to contracts awarded prior to October 1, 1995. Can A Construction Contractor Email Notice of a Claim? Maybe! | Burr & Forman - JDSupra. For help filing or appealing your contract claim against the government, call our contract dispute lawyers at 1-866-601-5518. Ultimately, the COFC or BCA will decide whether the agency's claim has merit. With that brief background, there are some practical considerations about whether to file an REA or a claim.
If you are like most contractors, you simply cannot afford to file a contract claim against the government and then lose out for what most would call a 'technicality. Since contractors do not always comply with the method of notice of a claim outlined in the Miller Act, actual notice may provide a safety net to those contractors who do not strictly comply with statutory or contractual requirements. If you need assistance in avoiding or dealing with any of these issues or if you have questions, please contact Peter Ford or Patrick Rothwell, the authors of this blog, or another member of PilieroMazza's Government Contracts Claims and Appeals Group. A prime contractor may only sponsor a claim on behalf of a subcontractor if the prime contractor has paid the subcontractor's claim or, more commonly, the prime contractor otherwise remains potentially liable to the subcontractor pursuant to a claims cooperation or liquidating agreement. Contractors are well aware that they cannot rely on the apparent authority of government officials. That was the question presented for consideration in Aspen Consulting, LLC v. Secretary of the Army, No. Demanding a refund of the contract price from the contractor. If the contracting officer fails to issue a final decision within a reasonable time, such failure may constitute a deemed denial, and the contractor may proceed with an appeal to the appropriate BCA or the Court of Federal Claims. 5 Key Ways a Contractor Can Be Subject to a Government Claim | PilieroMazza, Law Firm, Government Contracts Attorney. 00 must be certified by the contractor.
For example, an agency might have paid an invoice where the contractor used an incorrect contract line item number to designate the services being billed. For instance, a contractor is required to give "prompt" written notice to the contracting officer of a differing site condition before it is disturbed. Within what may seem to be small percentages, companies lose millions is denied contract claims against the government for one or more of the above reasons. In United States ex rel. On the other hand, if there is animosity, or a clear indication in prior discussions and correspondence, that the government does not believe that the contractor is entitled to an equitable adjustment, it is best to file a claim. Sixth, the claim must include a specific request for a final decision or otherwise set forth a clear indication that the contractor would like the contracting officer to issue a final decision. When this happens, an agency could issue a letter demanding that the contractor repay the amount by a specified date. Generally, a contractor may not recover its attorneys' fees incurred pursuing a claim under the CDA. In that case the Board had some reservation as to the date of emailing the 90-day notification to DLA. Can a contractor submit a claim by email form. Fifth, the claim must be submitted to a contracting officer, not a field officer or other administrative official. Below, we discuss 5 key ways a government contractor can be subject to a government claim and best practices to reduce your risks. The Equal Access to Justice Act allows some individuals and small businesses to recover attorneys' fees up to $125 per hour if it is determined that the claimant is the prevailing party and the government's position was not substantially justified. In this case, the prime contractor contacted the sub-subcontractor to ask how much it was owed on the project. Considering the time and resources required for an appeal of both a termination for default or a government claim for reprocurement costs or addressing a proposed suspension or debarment, it may be wiser to negotiate with an agency in advance to terminate the contract for convenience rather than default, which is less damaging to a contractor's reputation and future business dealings with the government.
Liquidated damages are a fixed amount set forth in a contract to compensate the agency for unexcused delays in the contractor's performance of the contract. However, an important exception to this rule is that a contracting officer's final decision is not a prerequisite to the government's assertion of a counterclaim against a contractor under the False Claims Act. Lastly, it should be noted that the CDA governs only post-award disputes; therefore, pre-award claims, such as bid protest actions, are not subject to the Act. Companies should not take this process lightly. It is also important to note that the additional costs must be allowable, allocable, and reasonable.
Nevertheless, an REA is commonly understood to be a request for compensation (time, money, or both) that falls short of a claim in terms of its procedural requirements. The claimant must also comply with the size standards set forth in the Act. 00, a contractor must certify that (i) the claim is being asserted in good faith, (ii) the supporting data is accurate and complete to the best of the contractor's knowledge, (iii) the amount requested is accurate, and (iv) the person asserting the claim is duly authorized to certify the claim. Problems can occur when a company sends its notice of appeal a contract claim via email. A termination for default is treated as a final decision, and a contracting agency may follow it with a final decision that the contractor reimburse the agency for its reprocurement costs. The USPS is served by the Postal Service BCA. 236-2, Suspension of Work, FAR 52. Generally, once a contractor chooses its forum, its decision is binding, and the contractor cannot pursue its claim in the other forum. Second, the contractor's written demand or assertion must seek the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to a contract between the government and the contractor. An REA does not require a certification under the Contract Disputes Act, but REAs submitted to Department of Defense agencies require the certification found in DFARS 252. A formal complaint is not required to file an appeal of a contracting officer's final decision to a BCA. It is not always an easy question to answer and our advice depends upon the history of the dispute, and the nature of the relationship with the Contracting Officer and his, or her, representatives. The question of whether to submit a Request for an Equitable Adjustment, commonly referred to as an "REA, " or a claim, is one that clients ask on a frequent basis. Changes in the payment instructions would need to have been made by updating the CCR file.
Emailing Government Contract Claims Notice of Appeal Can be Dangerous. The contracting officer shall document the contract file with evidence of the date of receipt of any submission from the contractor deemed to be a claim by the contracting officer. They include clear language and explanations to show why the government should pay the claim. In addition, the Government Accountability Office Contract Appeals Board handles contract disputes arising in the legislative branch, and the Office of Dispute Resolution for Acquisition handles contract disputes and bid protests arising out of Federal Aviation Administration procurements. By: Michael H. Payne. The contract provided for payment to be made to the account at Bank of America, which was identified in Aspen's CCR file.
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