If the U.S Government is anything, it’s realistic. It knows that disputes will inevitably arise with its contractors. So, it has a process to address those disputes under the Contract Disputes Act (and implementing FAR regulations).
In this post, we’ll briefly survey some key points to bear in mind when you and the Government slip off the same contractual page, and you need to file a claim (whether that’s challenging an unjustified CPAR rating, seeking funds for out-of-scope work, or any of the other issue where you seek relief from the Government).
Timing
To initiate a claim, a contractor must file it within 6 years after the claim accrued. Typically, a claim accrues on the date when events generate the Government’s liability.
Of course, you don’t have to wait 6 years to file your claim; that’s simply the applicable statute of limitations. It’s often better to file a claim earlier, when supporting documentation is easier to access and memories are fresher.
Where to File
File your claim–which must be in writing–directly with the contracting officer. You can submit a claim via snail mail or email. In any event, a best practice is to confirm that the contracting officer received your claim.
Certifying a Claim
For claims requesting over $100,000, you must include a contractor certification. This requires an individual empowered to bind the contractor to attest to certain representations set forth in FAR 33.207(c).
What the Claim Should Include
The claim should generally explain two things. First, it should explain, in detail, the facts entitling the contractor to the the requested relief (whether monetary or otherwise). Second, it should explain the legal basis for the claim. This would likely entail citing to relevant contract provisions and applicable case law authored by the two government contract boards and/or federal courts. Keep in mind, too, that a claim must sometimes be certified by the contractor.
Drafting a well-developed and well-written claim is key. It’s crucial that the claim provide ample supporting rationale and evidence–for this reason, contractors should take scrupulous notes about the project starting before any disputes arise, and maintain full (written) communication with the contracting officer. The Government is generally not inclined to pay more than the contract price, and reviewing Government attorneys will be looking to limit the Government’s liability. That said, if you can show the contracting officer that your claim is factually and legally solid, you stand a much better chance of obtaining a favorable decision.
The Contracting Officer’s Decision
The contracting officer must issue a written decision addressing the claim.
For claims of $100,000 or less. If you ask for a decision in 60 days, the contracting officer must issue her decision within that time frame. If no 60-day request is made, then the contracting officer must decide the claim within a reasonable time.
For claims of more than $100,000. The contracting officer must decide the claim within 60 days–unless during that period she advises that she will issue her decision within a different period of time (i.e., 90 or 120 days).
Appeals
If you’re dissatisfied with a contracting officer’s decision, you may appeal the decision to one of the two boards of contract appeals. The Armed Services Board of Contract Appeals hears appeals on contracts with DoD, NASA, or the CIA. And the Civilian Board of Contract Appeals hears appeals on contracts with all other agencies.
We’ll dive in contract appeals in another post, but in the interim, keep this in mind: appeals must be filed with the either the ASBCA or the CBCA within 90 days after the contracting officer’s decision. So, if you receive a unfavorable claim decision, move smartly towards filing an appeal–or forever relinquish your appeal rights.
If you have any questions about contractor claims or appeals, please give us a call at 913-354-2630. For other blog posts on federal government contracting issues, check out GovConBrief‘s main page.