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However, a contractor's claim should contain sufficient information to show the basis for the contractor's entitlement to the relief requested. In general terms, an equitable adjustment means that the contractor is entitled to his actual costs, plus reasonable profit (except for suspensions), overhead, and bond. Changes in the payment instructions would need to have been made by updating the CCR file. Can a contractor submit a claim by email to a company. 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 help filing or appealing your contract claim against the government, call our contract dispute lawyers at 1-866-601-5518. There are still circumstances when the government may reasonably rely on the apparent authority of contractor representatives. This is particularly true when the government has indicated flexibility on the issue and a willingness to reach an amicable resolution. 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. " But it sure makes doing so more difficult. Ultimately, the COFC or BCA will decide whether the agency's claim has merit. 5 Key Ways a Contractor Can Be Subject to a Government Claim | PilieroMazza, Law Firm, Government Contracts Attorney. Timing may play a crucial role in a contractor's decision, but many factors, such as preference for a more—Court of Federal Claims—or less—BCA—formal set of procedural rules or the ability of the government to bring a False Claims Act counterclaim, should be weighed by a contractor in making its forum selection for its appeal. With that brief background, there are some practical considerations about whether to file an REA or a claim. 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. " Generally, only the parties to the contract—the government and the prime contractor—can bring a claim under the CDA. At the outset, however, it is necessary to clear up the confusion between the terms "REA" and "Claim. 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. Having a fax certification notice of sending the appeal notice could be more persuasive to the Board of Contract Appeals.
Claims by both the government and federal contractors are subject to a six year statute of limitations which means that claims under the CDA must be submitted within six years of the time when all events establishing alleged liability for an injury were known or should have been known. This article sets forth basic information all federal government contractors should know when faced with the necessity of making or defending a claim on a federal project. Whether the claim exceeds $100, 000 or not, the best practice is to identify the request as a claim under the Contract Disputes Act of 1978, 41 U. S. C. 601-613, together with a request for a Contracting Officer's Decision. During the first year of Aspen's performance, the government released twelve progress payments to the Bank of America account. Once a contractor submits a claim to a contracting officer meeting all of the criteria of a CDA claim, the contracting officer must issue a final decision on the claim. In United States ex rel. The email notification was a critical issue in the case of USAC Aerospace Group, Inc. Should a Contractor Submit an REA or a Claim. dba USAC Aerospace Group: Aerostructures, ASBCA Nos. Under the Miller Act, second-tier claimants must give notice of any claim to the prime contractor within 90 days of last providing labor or materials.
The decision in Cummins-Wagner demonstrates one of many different ways in which a court can treat notice issues. 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. The CDA governs post-award monetary claims, such as breach of contract, non-monetary claims, such as a claim for time or interpretation issues regarding a specification, and claims arising out of an implied-in-fact contract between the federal government and a contractor. The Board concluded that the Army did not breach its payment obligation because the vice-president who sent the email instructions had apparent authority to bind the company. It is also important to note that the additional costs must be allowable, allocable, and reasonable. 232-33 (Oct. 2003), which required the government to make payment to the account that Aspen identified in the Central Contractor Registration database. The federal government and government contractors may bring claims under the CDA. Depending on the nature of the warranty provision contained in the contract, an agency can pursue certain remedies for defective services or products. 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. Can a contractor submit a claim by email address. S Court of Federal Claims or to an administrative board of contract appeals. What Is the Contract Disputes Act? Or, a contractor may file an appeal with the Court of Federal Claims within twelve (12) months of receipt of the contracting officer's final decision.
As is discussed below, once a CDA claim is made, the contracting officer is obligated to issue a final decision that, if unfavorable, must be appealed within ninety (90) days to a BCA or one year to the Court of Federal Claims. First, a contractor must make a written demand or assertion. Contractors are well aware that they cannot rely on the apparent authority of government officials. Government contractors should consider using a more formal method of notifying the agency. 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. Can a contractor submit a claim in writing by email far. At the end of the day there can be no debate that when the contracting officer denies a contract claim, government contractors must follow certain statutory requirements before appealing to the Board of Contract Appeals. 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. 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.
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 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. Fourth, the claim must be submitted within the six year statute of limitations. 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. Third, all contractor claims exceeding $100, 000. Filing a Government Contract Claim Appeal. 101 as "a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.
It should be noted, however, that in cases where there is doubt, there is no harm in starting out with an REA. Read more information about filing a contract claim against the government. Statute of Limitations for Appealing Contract Claims Against the Government. Under the Contract Disputes Act (CDA), 41 U. S. C. §§ 7101-7109, there is a 90-day filing requirement for filing an appeal with an agency board of contract appeals. Millions of dollars can be lost when one mistake is made. Additional time limitations under the Federal Acquisition Regulation may apply to claims related to changes, differing site conditions, or suspension of work. The claims process is very narrowly interpreted by the courts.
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. Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution. At a minimum you must give a specific amount of damages your seek, certify the claim if over $100, 000. The Agency will argue that your contract claims are time barred pursuant to the Contract Disputes Act, 41 U. When this happens, an agency could issue a letter demanding that the contractor repay the amount by a specified date. 207(c) when the claim amount exceeds $100, 000, and it must be submitted to the Contracting Officer in a manner that clearly provides the factual, technical, and legal basis for an equitable adjustment to the contract. By: Michael H. Payne. The 6-year period shall not apply to contracts awarded prior to October 1, 1995, or to a Government claim based on a contractor claim involving fraud.
The contractor's claim must be sum certain or capable of determination by a simple mathematical formula. A claim does not initially need to include supporting data, such as a detailed cost breakdown, if it otherwise satisfies the criteria of a CDA claim. Problems can occur when a company sends its notice of appeal a contract claim via email. The ASBCA is generally responsible for deciding appeals from decisions of contracting officers in the Department of Defense, the Department of the Army, the Department of the Navy, NASA, and when specified, the CIA. 00, the contracting officer may issue a final decision within sixty (60) days or provide to the contractor a firm date within a "reasonable time" by which the contracting officer will issue a final decision. This 6-year time period does not apply to contracts awarded prior to October 1, 1995. However, a prime contractor may assert a pass-through claim against the government on behalf of a subcontractor.
The claimant must also comply with the size standards set forth in the Act. There should be no question as to what the document is and what you are asking for. Contract with the federal government and you are by statute and by contract required to resolve any and all disputes under the Contract Disputes Act. The Army's failure to make payment to the account designated in the CCR file was a breach of contract. Most liquidating agreements limit the prime contractor's liability to the amount the government agrees to pay or is required to pay. For claims exceeding $100, 000. All disputes under the CDA must be submitted to either the U. Since the contractor did not dispute that it had received the email on the amount owed, the court found that notice was sufficient. Potential remedies of the government could include: - requiring the contractor to either repair, replace, correct, or re-perform the work at the contractor's expense; - the agency curing the defect itself or hiring a third party to do so and then charging the original contractor the costs of the additional work; - accepting the performance, but seeking a reduction in the price; or.
Rather than start the running of this clock, a contractor may ask for a change order or submit an uncertified request for an equitable adjustment or REA. Aspen's Bank of America account was listed in its CCR file. 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. The performance of any government contract by a contractor has the potential to bring certain monetary risks of a government claim against the contractor. It did so by incorporating FAR 52. 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.