Navigating the Federal Government Claims Process Requirements

The section Jurisdiction covers the jurisdictional requirements to adjudicate a claim against the government before the US Court of Federal Claims (COFC) or the appropriate agency board of contract appeals (BCA). It includes a discussion of the Tucker Act, which waives the government’s sovereign immunity and provides COFC with jurisdiction over certain claims. It also covers the Contract Disputes Act (CDA), which applies to any express or implied procurement contract entered into by an executive agency.

The section Procedure focuses on the procedural hurdles that practitioners must navigate for their clients to successfully open the doors to either COFC or the BCA. As Justice Oliver Wendell Holmes once wrote: “Men must turn square corners when they deal with the Government.” This part will help practitioners understand the necessary procedures under the CDA to prepare a properly certified claim and to appeal a contracting officer’s final decision. It also discusses the differences between court practice, rules, and procedures between COFC and the BCA. Lastly, this part briefly touches upon the role of the US Federal Circuit Court of Appeals (Federal Circuit) in the disputes process.

The section Unique Procedural Situations presents several common situations encountered on government construction projects. These “common situations” are unusual as compared to private party litigation. This part begins with a discussion of surety claims under performance and payment bonds, including complexities associated with takeover agreements. It also analyzes the distinction between subcontractor pass-through claims versus direct subcontract claims. This section concludes with useful information and case law covering claims under the changes clause (the most important and powerful provision in a government contract relating to claims), a brief introduction to challenging evaluations under the Contracting Performance Assessment Reporting System (CPARS), and claims for attorneys’ fees under the Equal Access to Justice Act.

The last section, Pitfalls and Consequences, discusses the unfortunate consequences one may encounter if clients fail to turn the square corners demanded when doing business with the government. This section highlights some of the more potent arrows in the government’s quiver, including the False Claims Act, False Statements Act, Forfeiture of Fraudulent Claims Act, and Suspension and Debarment.

Jurisdiction

As a sovereign entity, the government is totally immune from legal actions, except for those situations where it has specifically waived that immunity. Per the US Supreme Court, “[a] waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’”

The Tucker Act is a broad waiver of sovereign immunity and, as such, provides the jurisdictional foundation for contract claims against the government. It allows actions against the government for claims “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort.” Thus, the government has effectively waived its immunity for all contract claims, whether express or implied. The Tucker Act specifically allows contract claims under the Contract Disputes Act of 1978.

Claims under the Tucker Act may be brought only in the US Court of Federal Claims. This court was formerly known as the US Claims Court, and decisions of the Claims Court are considered precedential.

The Contract Disputes Act of 1978 presents the most common procedural vehicle for claims against the government. Although its specific requirements are covered in more detail below, the CDA covers the following main points:

• All claims in excess of $100,000 must be certified by the contractor. This means the contractor must warrant to the government that the basis of the claim and the amount due is factually correct.
• The contractor is entitled to interest on its certified claim from the date it is received.
• The government, through a contracting officer, must decide (that is, accept or reject, in whole or in part) claims for amounts less than $100,000 within 60 days of receipt. However, for claims in excess of $100,000, the contracting officer has 60 days to merely provide the contractor with a timeline for the issuance of the decision.
• The contractor must appeal any adverse contracting officer’s decision within 90 days if it desires to have that decision reviewed by a Board of Contract Appeals or file a lawsuit within one year in the Court of Federal Claims.
• Penalties for the submission of fraudulent claims.

The main provisions of the CDA regarding certification of claims and the appeal processes are included in a required clause of the contract entitled “Disputes.”

Claims arising under the CDA may be brought before executive agency Boards of Contract Appeals. Previously, numerous agencies had separate and independent Boards of Contract Appeals. Legislation enacted in 2006 consolidated the various tribunals into four Boards: the Armed Services Board of Contract Appeals (ASBCA), the Civilian Board of Contract Appeals (CBCA), the Tennessee Valley Authority Board of Contract Appeals, and the Postal Service Board of Contract Appeals (PSBCA). The ASBCA has jurisdiction over claims related to contracts with the U.S. Army, Navy, and Air Force, as well as the National Aeronautics and Space Administration. The CBCA entertains appeals regarding contracts with almost all other executive agencies. The Tennessee Valley Authority Board of Contract Appeals presides over appeals from contracting officer final decisions from the Tennessee Valley Authority. The PSBCA has jurisdiction over final decisions of contracting officers of the U.S. Postal Service (USPS) or the Postal Regulatory Commission.

Procedure

Procedure Generally

Claim Submission

Most remedy-granting clauses require contractors to provide notice of a potential claim. After giving initial notice of a claim in accordance with the applicable provisions of the contract, the next step is the actual submission of the claim. Under the Changes clause (a remedy-granting clause), the submission must take place within 30 days of the date of receipt of a written change order or the date of the initial notice, whichever is applicable. Claims based on local law have no set time limit for submission of the related claim, although it is best to submit them as soon as possible, and they must be submitted before final payment.

Certification Generally

Under the CDA, the claim must be submitted in writing to the person designated in the contract as the contracting officer and should specifically request a decision on the claim. If the claim is in excess of $100,000, it must be certified. The Federal Acquisition Regulation (FAR) provides the precise language to be used in the certification:

I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the Contractor.

The certification must be made by the contractor personally, if an individual, or if a company, by a person “authorized to bind the contractor with respect to the claim.”

If a claim in excess of $100,000 is not certified, it is not a “claim” and cannot be considered by the contracting officer. Even if it is, in fact, the subject of a decision by the contracting officer, the decision is a nullity and the claim can be dismissed for lack of jurisdiction at any subsequent stage of the proceedings.

Certification of Subcontractor Claims

A contractor that wishes to “pass through” claims against the government that actually originate with a subcontractor also must comply with the certification requirements of the CDA and the FAR. This requirement can lead to some tension between the requisite language and the actual information that may be available to the prime contractor when presented with the subcontractor’s claim.

The CDA bars a prime contractor from qualifying its pass-through claim certification, since the precise FAR certification language must be utilized without change. However, the certification requirement does not require the prime contractor to determine definitively the merits of a subcontractor’s pass-through claim. The certification requirement “requires not that the prime contractor believe the subcontractor’s claim to be certain, but that the prime contractor believe that there is good ground for the claim.” This type of certification of subcontractor claims has become known colloquially as a “Turner certification,” after the Federal Circuit case establishing it.

Subsequent cases also have established that there is a fine line between language that does and does not amount to an impermissible “qualification” of the certification. For example, the Federal Circuit found a certification satisfactory even though the prime contractor had stated that “[w]e do not have access to [the subcontractor’s] books and records and, therefore, cannot make any statement with respect to the amount of their claim.” By contrast, the Court of Federal Claims rejected a certification where the prime contractor admitted it had not reviewed the subcontractor’s proposal.

Finally, two additional points are worth emphasizing. First, because of the certification requirement, it is clear that the prime contractor retains discretion regarding whether to “pass through” a claim to the government. This discretion may be tempered by subcontract language that requires the prime contractor to pass through the subcontractor’s claim. If the prime contractor declines to pass the claim through, the subcontractor’s rights lie solely against the prime contractor. Second, as discussed below, the certification of subcontractor claims without adequate review can expose both the prime contractor and subcontractor to liability under the False Claims Act.

Contracting Officer’s Final Decision

The contracting officer must issue a decision on claims of $100,000 or less within 60 days of receipt if the contractor requests that the decision be issued within this period. In general, certified claims in excess of $100,000 shall be decided within 60 days of receipt by the contracting officer or within “a reasonable time”; however, the contractor must be notified within 60 days of the time within which a decision will be issued. Contractors do not have to give the contracting officer more than one extension to the 60-day deadline. The decision must state the reasoning of the contracting officer in reaching the decision and also must inform the contractor of its rights to appeal to a Board of Contract Appeals or to bring suit in the Court of Federal Claims if the contractor disagrees with the decision.

If a contracting officer unduly delays issuance of a decision, the contractor may request the appropriate Board of Contract Appeals to direct the contracting officer to issue a decision. A failure by the contracting officer to comply with the time limits in which to issue a decision is considered to be a denial of the contractor’s claim (a “deemed denial”), thereby authorizing an appeal to the Board of Contract Appeals or commencement of suit in the Court of Federal Claims.

Appeal

As noted, if the contractor disagrees with the decision of the contracting officer, it has two appeal options. The first is to file a suit in the Court of Federal Claims within 12 months of receipt of the contracting officer’s final decision. Alternatively, the contractor may appeal to the applicable Board of Contract Appeals within 90 days of receipt. Although a “deemed denial” as discussed above authorizes a contractor to pursue an appeal, it does not require the contractor to do so. Only an actual, written decision triggers these limitations periods.

The CDA provides that “[t]he contracting officer’s decision on a claim is final and conclusive and is not subject to review by any forum, tribunal, or Federal Government agency, unless an appeal or action is timely commenced. …”The Federal Circuit has interpreted this language to hold a timely appeal is a jurisdictional prerequisite. This means that the Court of Federal Claims or a Board of Contract Appeals can dismiss an appeal as untimely sua sponte, even if the government has not raised the defense of untimeliness. However, at least one commentator has made a compelling argument that the timeliness provisions of the CDA (as well as the claim submission and certification requirements) should not be considered jurisdictional but merely “claim processing requirements” that could support an affirmative defense for failure to state a claim, but which are not a prerequisite to the Court’s or Board’s exercise of jurisdiction. Of course, such arguments are purely academic unless and until a contractor convinces the Federal Circuit to adopt them. In the meantime, attorneys should be cognizant of the strict enforcement of the CDA’s timeliness requirements.

Once appealed, however, the contractor is entitled to a de novo proceeding; the findings of the contracting officer are not binding in any subsequent proceeding.

Court of Federal Claims

The Court of Federal Claims is the more formal of the two fora available to a contractor appealing a contracting officer’s decision. The contractor must be represented by counsel admitted to practice in the court. Department of Justice trial counsel typically represents the government. The court is based in Washington, D.C., but is authorized to hold hearings in other locations as needed.

Procedure Generally

The Rules of the Court of Federal Claims closely track the Federal Rules of Civil Procedure (FRCP), both in substance and in their numbering/organization. As in a US district court, the contractor commences the litigation by filing a complaint and serving process on the government. Appendix A to the Rules sets forth a “Case Management Procedure” that requires, among other things, an “early meeting of counsel,” followed by a “joint preliminary status report” addressing numerous procedural issues, such as the potential joinder of additional parties, potential bifurcation of trial of liability and damages, likelihood of settlement and potential pursuit of alternative dispute resolution, and any other case management issues the parties foresee.

Discovery

The methods and limits upon discovery mirror those in the FRCP. Initial disclosures are required under Rule 26. Written discovery may include interrogatories, requests for production, requests for admission, and depositions on oral or written questions. Expert disclosures and discovery also track the Federal Rules. The court has subpoena power over nonparties coextensive with that in the federal district courts.

Trial

All trials in the Court of Federal Claims are bench trials; there is no right to a jury trial. In addition to court rules tracking the FRCP applicable to trials, the Federal Rules of Evidence apply. The Case Management Procedure appendix sets forth detailed pretrial procedures, requires a post-discovery conference with the court, and addresses the exchange of exhibits, disclosure of witness lists, and the filing of Memoranda of Contentions of Fact and Law, i.e., a pretrial brief.

Boards of Contract Appeals

As noted, there currently are four separate Boards of Contract Appeals, but the ASBCA and the CBCA handle the vast majority of cases, including construction cases. A contractor can represent themselves (without counsel) before a BCA. Counsel from the affected agency typically represents the government. The level of formality of the proceedings is on a continuum somewhere between arbitration and federal court; the Boards tend to apply their rules and procedures more flexibly than the Court of Federal Claims, but the degree of formality surpasses that typically experienced in an arbitration proceeding. BCA judges are administrative law judges appointed by the Administrator of General Services under 41 U.S.C. § 7105(b)(2), and hearings will typically take place in a formal courtroom.

Some key procedural issues related to practice before the Boards (focusing primarily on the ASBCA and CBCA) are as follows:

Procedure Generally

A contractor commences an appeal by filing a simple notice of appeal. The required contents of this notice vary slightly between Boards, but generally include the contract number, the name of the agency involved, and a copy of the contracting officer’s final decision (unless a “deemed denial” is being appealed). Upon notice of the docketing of an appeal with a Board of Contract Appeals, the contractor must file its complaint within 30 days. The government must respond with an answer and the initial files in the appeal file within 30 days.

For small claims ($100,000 or less), the CDA provides two expedited procedures that the contractor may opt to utilize. Claims up to $50,000 may be brought using simplified rules of procedure, which result in a decision within 120 days of electing the procedure. The Board rules provide for the limitation of discovery and other prehearing activities to allow for resolution within the 120-day period. All decisions rendered under this procedure are final and conclusive and are not subject to judicial review except in cases involving fraud, nor will any decision be considered precedent in any future case.

If a claim is under $100,000, the contractor can utilize the “accelerated” review procedures. Whenever possible, a decision is to be made within 180 days of the contractor’s election to proceed under this section. Each Board’s rules govern the shortened procedural steps to be taken in appeals under this section. Usually, pleadings, briefs, and discovery are greatly reduced under the expedited procedures.

Discovery (Including the “Rule 4 File”)

The government, through the contracting officer, is required to prepare and forward an appeal file containing “all documents relevant to the appeal.” The degree of completeness of this file (known as the Rule 4 File since it is required by Rule 4) submitted by the government can vary widely, but both parties have multiple opportunities to supplement the Rule 4 File. An initial supplement is due 30 days after the government’s initial submission. Both parties then typically have an opportunity to further supplement the Rule 4 File following the close of discovery and prior to trial. The Rule 4 File effectively serves as the trial exhibit list, as the documents therein are considered part of the record of the appeal unless objected to by the opposing party. The Rule 4 File is a characteristic feature of BCA practice and works much like the hearing exhibit submission and objection procedure commonly used in arbitrations.

Both the ASBCA and CBCA also provide for written discovery in the form of interrogatories, requests for production, and requests for admission. The ASBCA requires, and the CBCA encourages, the parties to confer and develop an agreed-upon discovery plan addressing the timing, sequence, and limitations on discovery. The CBCA expressly incorporates Rule 26(b)(1) of the FRCP regarding the scope of discovery. While the ASBCA lacks a similar rule, in practice it, too, looks to the FRCP for guidance on the scope of permissible discovery.

The Boards also allow for depositions, both for discovery purposes and to perpetuate testimony. Neither the ASBCA nor the CBCA incorporates a presumptive limit on the number of depositions as in the FRCP. In practice, however, the Boards will rely upon the parties to establish agreed-upon limits, or will set them by order consistent with the somewhat less formal nature of the proceedings as a whole.

Hearing

Hearings before the Boards are adversary proceedings. Though cases are assigned to a panel of three Board judges, typically a single judge will preside over the hearing (as well as all prehearing motions and conferences), with the remaining two judges reviewing (and usually concurring in) the ultimate decision.

The Federal Rules of Evidence are not applied strictly, though both the ASBCA and CBCA Rules provide that the Federal Rules will provide “guidance.” However, the CBCA Rules expressly state that “the Board generally admits hearsay unless the Board finds it unreliable.” In practice, the ASBCA operates similarly. As noted, documents in the Rule 4 File (and not subject to a sustained objection) are in evidence and can be relied upon even if the documents therein are not formally addressed at the hearing through a witness. The Boards commonly will request both prehearing and post-hearing briefing to frame the issues of law and fact with citation to record evidence. Opening and closing arguments may not be utilized.

Bifurcation of entitlement and quantum issues is relatively common, especially at the ASBCA. In keeping with the goal of providing an efficient and economical forum for dispute resolution, the intent is that either (a) the parties can avoid the expense of having to address damages issues if entitlement is not found or (b) if entitlement is found, the parties also can potentially avoid those expenses by negotiating a resolution on quantum. On the other hand, if disputes over damages preclude settlement after the entitlement phase, bifurcation can lead to a duplication of efforts and prolongation of the entire dispute process.

Federal Circuit Appeals

Any appeal of a decision of either a Board of Contract Appeals or the Court of Federal Claims must be taken to the US Court of Appeals for the Federal Circuit. Considering the US Supreme Court very rarely grants certiorari to government contract cases, Federal Circuit authority generally represents the controlling precedent for claims arising under government contracts.

While the deadline for appealing a contracting officer’s final decision is lengthier in the Court of Federal Claims than that for an appeal to a Board of Contract Appeals (12 months vs. 90 days), the deadline for an appeal to the Federal Circuit is shorter. Any appeal from a final decision in the Court of Federal Claims must be taken “within 60 days of the entry of the judgment or order appealed from,” whereas the contractor or the government has “120 days from the date the [contractor/agency] receives a copy of the decision” to appeal a Board of Contract Appeals ruling.

The CDA includes express provisions regarding the Federal Circuit’s scope of review of a Board decision. The review will be limited to a determination of the applicable rules of law and whether any clearly erroneous finding of fact was made by the Board:

Notwithstanding any contract provision, regulation, or rule of law to the contrary, in an appeal by a contractor or the Federal Government from the decision of an agency board pursuant to subsection (a)—

(1) the decision of the agency board on a question of law is not final or conclusive; but

(2) the decision of the agency board on a question of fact is final and conclusive and may not be set aside unless the decision is—

        (A) fraudulent, arbitrary, or capricious;

        (B) so grossly erroneous as to necessarily imply bad faith; or

        (C) not supported by substantial evidence.

Therefore, in most instances, the Board’s decision will be final on questions of fact.

However, the Federal Circuit has the final determination on the rules of law to be applied. The Federal Circuit will render a decision either affirming or reversing the Board’s decision in whole or in part, but also “may render an opinion and judgment and remand the case for further action by the agency board or by the executive agency as appropriate, with direction the court considers just and proper.”

Alternative Dispute Resolution

The CDA also authorizes the government to resolve claims via alternative dispute resolution. Methods of permissible alternative dispute resolution include arbitration, mediation, mini-trials, and other methods. If either the contractor or the government requests alternative dispute resolution, and the other party refuses, that party must provide their reason for refusal in writing. Even if the parties agree to alternative dispute resolution, the contractor still must certify claims in excess of $100,000.

Unique Procedural Situations

Several claim situations have unique or atypical procedural requirements. In limited instances, a party other than the original contractor (a Miller Act surety or a subcontractor) may be able to assert a claim directly against the government. Other procedural hurdles can arise when a contractor seeks to pass through the claims of one of its subcontractors, and in disputes arising from the application of the Changes and Default clauses of the contract. Additionally, there are cognizable claims for relief outside of the performance of the contract itself: attempts to alter a performance evaluation under the Contractor Performance and Assessment Reporting System (CPARS) and claims for attorney fees under the Equal Access to Justice Act (EAJA).

Surety Claims

As with any claimant against the government, a surety pursuing a claim must first establish jurisdiction. The type of claim the surety seeks to assert, and whether it originates from the issuance of a performance or payment bond, will determine whether the surety must proceed under the CDA or the Tucker Act.

Performance Bonds

A surety may elect to fulfill its obligations under a performance bond by entering a takeover agreement with the government. In this circumstance, the surety becomes the entity in direct contractual privity with the government. Distinctions exist between situations both in which a surety performs under a takeover agreement and when it does not, and—where a takeover agreement is executed—between claims arising prior to the takeover agreement and those arising afterward.

1. Under Takeover Agreement

The CDA defines a “contractor” as “a party to a Federal Government contract other than the Federal Government.” The Federal Circuit held in Lumbermens Mutual that, once a surety executes a takeover agreement with the government, the surety becomes a “contractor” under the CDA, and thus must proceed exclusively under the CDA for any claims against the government.

Lumbermens Mutual applies to claims arising after the execution of the takeover agreement, which the surety itself (acting through a retained completion contractor) seeks to assert. With respect to the defaulting contractor’s claims that accrued prior to the execution of the takeover agreement, however, the Federal Circuit has held that a surety generally does not have a right to assert such claims on the contractor’s behalf. However, the language of the takeover agreement will control. A surety seeking to preserve and later assert its principal’s claims needs to secure the government’s agreement via the express terms of the takeover agreement.

A surety’s attempt to assert its principal contractor’s claims also implicates the Anti-Assignment Act, which generally precludes the assignment of claims against the government. However, the government can waive these protections and expressly consent to the surety’s prosecution of contractor claims. The circumstances in which courts or Boards may find such a waiver are highly fact specific. For instance, the ASBCA found sufficient government consent where the contractor’s agreement to assign its claims to the surety was attached as an exhibit to the takeover agreement. On the other hand, the Court of Federal Claims refused to find a waiver even where the contracting officer explicitly had instructed the surety to submit a request for equitable adjustment regarding pre-takeover issues, and the contractor had notified the government that it had assigned its claims to the surety. Formal confirmation that the contractor has assigned its claims is also critical. The ASBCA recently dismissed a surety’s appeal for lack of jurisdiction where the surety had a takeover agreement with the government stating that it was “entitled to [the] rights and interest of [the contractor] ‘as if Surety were the original party to the Contract ... [and] had executed the Contract initially instead of [the contractor].’” Because the contractor was not a party to the takeover agreement, the Board found this language insufficient to permit the surety to assert the contractor’s claims absent proof of the contractor’s agreement thereto.

2. No Takeover Agreement

In the absence of a takeover agreement, a surety will be limited to claims under the Tucker Act (and a direct action in the Court of Federal Claims), usually under an implied contract theory of “equitable subrogation.” This doctrine typically permits the surety to “step into the shoes of” its contractor principal and seek payment of both any amounts remaining under the contract and any amounts the government may have paid to the contractor after the surety notified the government of the contractor’s default. Such a notification is an essential element of an equitable subrogation claim; the surety cannot recover any overpayments made by the government prior to providing such notice. Importantly, the doctrine is limited to claims for “funds held by the government or the retrieval of improper disbursements,” such that a surety cannot assert, for instance, delay or acceleration claims pursuant to the Tucker Act under an equitable subrogation theory. Thus, a surety seeking to assert such claims must execute a takeover agreement and proceed under the CDA.

Payment Bonds

Surety claims against the government also may arise where a surety has made payments to a subcontractor on a payment bond. Again, equitable subrogation and the Tucker Act provide the basis for jurisdiction, usually in the surprisingly common scenario in which the government has continued to make payments to the contractor even after notice of the contractor’s payment default. If the surety has (i) paid subcontractor claims and (ii) provided notice to the government that it has done so and requested that the government retain remaining funds for the surety’s benefit, and (iii) the government continues to pay the contractor regardless, the surety can seek reimbursement from the government to the extent of the funds available at the time of its notice.

In summary, the flowchart below illustrates the varying sources of jurisdiction and potential fora for resolution of claims that might arise when a Miller Act surety attempts to assert claims against the government.

Surety Claims Against the Federal Government - view the flowchart [PDF Download]

Subcontractor Pass-through Claims

Generally, a subcontractor lacks the contractual privity necessary to seek and collect contract damages from the government pursuant to the CDA. Absent some contractual relationship creating such liability, a subcontractor may only recover against the government indirectly, either when the prime contractor sponsors its claims or if the prime contractor includes its liability to a subcontractor in its damages claimed against the government.

Under the rule established by Severin v. United States, a contractor cannot certify and sponsor a subcontractor’s claim if it has not paid or is not liable to the subcontractor for the costs claimed. The subcontract in Severin contained an exculpatory clause that relieved the contractor of any liability for subcontractor claims due to delays caused by the government, and the former Court of Claims held that the prime contractor could not recover on its subcontractor’s behalf for such delays.

Subsequent Court of Federal Claims and Federal Circuit cases have narrowed the admittedly harsh result of the so-called Severin doctrine. To begin with, it is the government’s burden to prove that a subcontract clause specifically limits the contractor’s liability to the subcontractor for the claimed damages. More importantly, the Severin limitation applies only when there is an “iron-bound” release or contract provision immunizing the prime contractor completely from any liability to the subcontractor.

For example, claims by a subcontractor that can be made pursuant to a clause in the prime contract with the government are not barred by the Severin doctrine even if the subcontract contains an exculpatory clause shielding the prime contractor from liability for subcontractor claims due to actions by the government. In Blount Bros.,the former Court of Claims interpreted the exculpatory clause in the subcontract to protect the prime contractor from liability to the subcontractor in cases where the prime contractor is unable to recover from the government for the claim in question. If the prime contract with the government specifically provides for recovery for the damages claimed by the subcontractor (e.g., an equitable adjustment under the Changes clause, recovery for delay under the Suspension of Work clause), the prohibition of the Severin doctrine should not apply.

Direct Subcontractor Claims

In a few limited circumstances, a subcontractor may be able to present a claim directly to the government, if it can prove that the applicable contract documents establish privity between the government and the subcontractor. As restated by the U.S. Court of Appeals for the Sixth Circuit, the Federal Circuit has established a four-factor test for considering whether a subcontractor can establish sufficient privity with the government to support a direct right of appeal: (1) whether the subcontractor and the government had ever had a direct contractual relationship; (2) whether the subcontract with the prime contractor contained an “ABC” clause (i.e., an express disclaimer of privity of contract between the subcontractor and the government); (3) whether the prime contractor was required to obtain a Miller Act payment bond, thereby providing a recourse by the subcontractor other than a direct appeal; and (4) whether there was any provision in any of the contract documents that clearly authorized a direct appeal (to the Board of Contract Appeals) by the subcontractor.

In the seminal case on the issue, Johnson Controls, the Federal Circuit determined that none of the four factors weighed in favor of a finding of privity and thus concluded that the ASBCA improperly exercised jurisdiction over the subcontractor’s claim. In subsequent decisions, the Court of Federal Claims has made clear that, while the subcontractor need not prove that each of the four factors supports privity, a direct right will only be recognized in “rare, exceptional cases.”

Conversely, if the functional equivalent of privity with the government exists based on the four-factor Johnson Controls test, a subcontractor may be limited to pursuing its claim only against the government. The US Court of Appeals for the Sixth Circuit held as much, concluding that the CDA preempted any claims a subcontractor may have had against the prime contractor and requiring the subcontractor to pursue its claims directly against the government.

Changes Clause Claims

Government construction contracts contain a Changes clause that allows the government the unilateral right to order changes in the contract work or terms during the course of performance, as well as providing for agreed-on or bilateral changes. The Changes clause authorizes the contracting officer to make changes to the work within the general scope of the contract without consent of the contractor (the version for fixed-price construction contracts is at FAR 52.243-4). It specifically authorizes changes to the specifications (including drawings and designs), the method or manner of performance of the work, in the government-furnished property or services, or directing acceleration in the performance of the work. With limited exceptions addressed below, unilateral changes are binding on the contractor and must be complied with but are subject to the right to an equitable adjustment if a unilateral change increases or decreases the cost of the contract or time of performance (assuming timely notice is provided by the contractor).

Equitable adjustments are “corrective measures used to keep a contractor whole when the government modifies a contract.” The adjustment should not increase or decrease the contractor’s profit or loss and must be related to the modification. The formula for the equitable adjustment is the “reasonable cost of performing without the change or deletion and the reasonable cost of performing with the change or deletion.” Profit is recoverable under the Changes clause. Contractors reserve their rights to an equitable adjustment if they provide notice in writing within 30 days from the date of receipt of the change. Under FAR 52.243-4(e), the notice should include a “written statement describing the general nature and amount of the proposal.”

Not all changes occur in the form of a written change order. Many changes happen informally, and such changes are nevertheless treated as if formally ordered under the broad and powerful doctrine of constructive changes. A constructive change results when “a contractor performs work beyond the contract requirements without a formal order, either by an informal order or due to the fault of the Government.” “To demonstrate that the government has constructively changed the terms of a contract, a plaintiff must show: (1) that it performed work beyond the contract requirements; and (2) that the additional work was ordered, expressly or impliedly, by the government.” When a constructive change is demonstrated, the contractor is entitled to an equitable adjustment of the contract price to the same extent as if the change was formally ordered. The contractor must assert its right to an equitable adjustment under the Changes clause in this situation within 30 days from the constructive change.

Using the constructive change theory, a contractor may be able to recover for other, more indirect types of damages stemming from a change order. For instance, where the government issues a series of formal change orders that lead to inefficiency, delay, or disruption, then the contractor may be able to recover the associated costs that result from the collective impact of the series of change orders. The notice requirement continues to apply, so the contractor should notify the contracting officer and reserve its right to seek an equitable adjustment as soon as possible (keep in mind that not all costs must be incurred before a notice can be submitted) and make every effort to keep a record of those additional costs.

Contractors can recover an equitable adjustment that amounts to its actual cost of the change, plus a reasonable profit for performing the extra-contractual work—the same recovery under a formal change order.

In the same vein, “commercially impracticable” or “impossible” contract requirements also can be addressed as constructive changes. A commercially impracticable requirement imposes substantial unforeseen costs on the contractor. A contract is commercially impracticable when performance would cause “extreme and unreasonable difficulty, expense, injury, or loss to one of the parties.” The Federal Circuit in Raytheon Co. v. White likened this to a constructive change because contractors in both scenarios should be entitled to equitable adjustment to offset the substantial unforeseen costs they otherwise would have to bear.

It is critical that a contractor be sure to have the contracting officer ratify any constructive change to the contract. Only the contracting officer (and those to whom the contracting officer has specifically delegated some of his or her authority) has the authority to bind the government in contracting matters. This authority takes the form of a specific warrant of authority issued to each contracting officer. The contracting officer can delegate a portion of this contracting authority to other government personnel, but without such a delegation, no other government representative has the authority to bind the government with respect to that contract. For example, an unauthorized government team member (like the program manager or senior site representative) may attempt to order changes orally, on the basis that he or she believes this is what the contracting officer wants or what the government needs. However, such a direction will not be a cognizable change or constructive change without clear direction from the contracting officer, or after the fact ratification by the contracting officer. The contractor is proceeding at its own risk for any increased costs or delays if it proceeds with an unauthorized attempted change because the government representative did not have the authority to obligate the government.

The “cardinal change” doctrine acts as a limit on the broad scope of permissible changes that can be ordered under the Changes clause. A cardinal change is a change that so fundamentally alters the contractual undertaking that it is beyond “the general scope” of the contract, and so authorized by the Changes clause. Work is considered within the general scope of the contract if it can fairly and reasonably be regarded as within the contemplation of the parties when the contract was entered into, or if it is still essentially the same work that the parties bargained for when the contract was awarded. To succeed on a cardinal changes claim, the contractor thus needs to show (1) a government action (2) affecting a drastic alteration to the work that (3) materially changes the nature of the bargain. Successful cardinal change claims are rare, and thus are a high bar to meet.

An additional area where extreme diligence should be exercised is in reviewing the release language that the government includes in proposed change orders. A release is the “act of giving up a right or claim to the person against whom it could have been enforced.” Release language is typically included in formal modifications, and if contractors are not careful, they could be releasing the government from further liability for future costs relating to the modification. In some scenarios, the government may argue that claims have been impliedly released through the failure to reserve them expressly, even in the absence of release language. Because the case law on this issue is uneven and fact-specific, good practice is for the contractor to expressly reserve its right to seek a future equitable adjustment relating to that change. If the contractor has failed to reserve its rights and realizes this after the fact, then it should request (generally in the form of an email) written acknowledgment from the contracting officer that the issue of future costs remains open. Such post-modification correspondence may overcome a release defense.

Finally, even if there is no Changes clause in the contract, one may be read in as a matter of law under the Christian doctrine. This is an exception to the general rule that the government must put contractors on notice of contract requirements, whether expressly stating the requirement or through incorporation by reference. The doctrine provides that a mandatory statute or regulation that expresses a significant or deeply ingrained strand of public procurement policy will be read into a government contract by operation of law, even if the clause for some reason is omitted from the contract.

Best Practices

As changes are inevitable and unavoidable, there are generally recognized best practices for government contractors to utilize to minimize their risks in regard to changes. First, the contractor should aim to document as much as possible. This includes preserving any correspondences, emails, and letters that may be construed as the government issuing directions. This more importantly includes documented government actions and inactions that the government does not document. If lack of access to a government facility or property prohibits the contractor’s ability to perform, it should be documented. Likewise, any government inactions—such as a request to the contracting officer going unanswered or that the government fails to meet prescribed review periods for deliverables—also should be documented.

Another best practice is to seek written clarification from the government by asking about any ambiguous or unclear directions. For example, an instruction may be understood as a constructive suspension but can be read in different ways. Before suspending the affected portion of the work, clarification should be requested to reduce the possibility of the contractor misinterpreting the government’s intent and not being paid for following the contractor’s understanding that later proves erroneous. It is also always good practice to notify the government promptly and in writing regarding delays and potential change situations. A notice that proves unnecessary does not hurt anything but may save the day if the issue develops into a dispute.

Contrast these scenarios of unilateral action with how the FAR treats government contracts in the commercial space. Contracts dealing with commercial products and commercial services cannot be changed unilaterally by the government; rather, any changes to the terms and conditions of this type of contract must be made by written agreement of both parties. This clause may come into play if the prime contract incorporates the clause and a commercial supplier is needed to support construction.

Termination Claims

Almost every government contract contains a clause allowing for termination for default or convenience. A termination for default generally means that the government does not believe the contractor is adequately performing according to the terms and conditions of their contract, whereas a termination for convenience allows the government to terminate all or part of a contract for a wide range of reasons without cause on the part of the contractor.

Termination for Default

Generally, the government may terminate for default if the contractor fails to perform adequately under the contract. The FAR contains various default clauses that can be incorporated into a contract, each identifying different conditions under which a termination for default is permitted. The clause covering default termination for fixed-price construction contracts is FAR 52.249-10. The government’s policies with respect to termination for default are contained in FAR Subpart 49.4.

A termination for default can be based on many factors, including the contractor’s failure to deliver contract supplies and materials or proceed with the contract, severe progress problems, a defective product, failure to comply with other contract provisions, and repudiation, to name a few. While the scenarios can vary, FAR 49.402-3 lists seven factors an agency must consider before termination for default: (1) the terms of the contract and applicable laws and regulations; (2) the specific failure of the contractor and the excuses for the failure; (3) the availability of the supplies or services from other sources; (4) the urgency of the need for the supplies or services and the period of time required to obtain them from other sources, as compared with the time delivery could be obtained from the delinquent contractor; (5) the degree of essentiality of the contractor in the government acquisition program and the effect of a termination for default upon the contractor’s capability as a supplier under other contracts; (6) the effect of a termination for default on the ability of the contractor to liquidate guaranteed loans, progress payments, or advance payments; and (7) any other pertinent facts and circumstances.

While the government may terminate for default, courts and Boards typically regard termination as an extreme measure and a forfeiture provision, strictly construed against the government.

Delinquency Notices

FAR clauses relating to default also lay out the termination procedures for the contracting officer. The Default clause for fixed-price construction contracts requires written notice prior to termination if the contractor refuses or fails to prosecute the work with the diligence required to ensure timely completion, or fails to complete the work within the time required. However, the government must not terminate the contract if the contractor’s ability to proceed is without its fault or negligence and due to unforeseeable causes. However, the contractor must notify the contracting officer of the unforeseeable cause preventing performance. If the contracting officer terminates and that termination is later deemed invalid, the termination is treated as one for convenience.

If the contracting officer seeks to terminate a contract before the delivery date, the contracting officer must issue a cure notice. A cure notice is a letter issued by the contracting officer to notify the contractor that the government believes that the contractor’s performance will endanger the contract and specifies a period, usually 10 days, for the contractor to correct the condition. Cure notices are only required when the delivery or performance schedule of a government contract has not yet expired or is set to last longer than the period outlined in the letter.

Once a contractor receives a cure notice, it must cure the underlying performance issue or give “adequate assurance” to the contracting officer that it will be able to cure said performance issue. Without either, the government can terminate the contract for default or deem the contractor as repudiating the contract. Repudiation occurs when one party renounces the terms of a previously agreed-upon contract in some way. A termination is proper if the contractor repudiates performance. Conversely, courts have found that the government’s failure to give a cure notice, when required, will result in an improper termination.

Contrast the mandatory cure notice with the voluntary show cause notice. A show cause notice is optional on the part of the government. If issued, it is typically when the government believes the contractor violated the terms or conditions of the contract. A show cause notice asks the contractor to excuse its own inadequate performance by presenting any facts relating to their performance that would help answer the question of whether the contractor’s performance stems from causes beyond their control and without fault or negligence.

The government cannot terminate a contract for default without ample justification. The Default clause states if a court or Board finds the government’s actions to have been improper, a termination for default is converted to termination for convenience (which would allow the contractor to recover money in the event of termination). The consequences for the contractor following a successful termination for default are severe and can include not being paid for unaccepted work, a demand for the return of payment, excess re-procurement costs for the government that could be passed on, and other liquidated damages.

When defending against a termination for default, it is important to know that contractors cannot mount an affirmative defense based on an issue that is tantamount to a claim (an adjustment of contract terms, etc.) without first filing a claim with the contracting officer. For example, a contractor cannot defend against a default termination on the basis of a delay if a delay claim was not first presented to the contracting officer because the delay would result in the adjustment of the contract schedule. Defenses that do not seek an adjustment to contract terms, that are not a claim for relief, or that are an ordinary common law affirmative defense such as arguing defective specifications, estoppel, waiver, laches, or statute of limitations are not subject to the Maropakis rule. Contractors should file claims when necessary to preserve defenses when appealing a termination for default.

Termination for Convenience

The Termination for Convenience of the Government clause in the FAR is one of the most unique provisions contained in government contracts because no other area of contracting law gives one party such broad and complete authority to be let out of their contractual obligations. FAR 52.249-2, Alt. I is applicable to construction contracts. Essentially, this clause gives the government the ability to terminate a contract without cause while simultaneously limiting the contractor’s ability to recover for costs incurred, profit on work done, and costs of preparing the termination settlement proposal. While recovery of the anticipated profits from the contract is completely barred by the clause, a contractor can generally expect to be paid for work already delivered and accepted by the government. Lastly, the clause does not place any time limitations on the government, meaning the contracting officer can choose to terminate for convenience whenever they want.

If the government terminates a contract for its convenience, it must notify the contractor in writing. The notice of termination must contain the effective date of the termination, the extent of the termination, and any special instructions. The termination notice lays out the obligations of the contractor, which are to generally stop work immediately on the terminated portions of the contract, terminate all related subcontracts, and promptly submit the contractor’s own settlement proposal. The contractor also should be sure to notify its employees regarding the termination and separate inventory allocable to the contract or government from their own property. Settlement proposals must be submitted within one year from the date of the termination. Under FAR 52.249-2, Alt. I(g), the contractor can recover the cost of work performed before the effective date of termination, the cost of settling and paying termination settlement proposals under terminated subcontracts, profit (unless the contractor would have sustained a lost), and reasonable costs settling the terminated work such as accounting, legal, clerical fees, the cost of terminating and settling subcontracts, and storage, transportation, and other costs. After the contractor submits its settlement proposal, the two parties come together to negotiate a final settlement. At this point, the contractor is likely dealing with a termination contracting officer, as opposed to the contracting officer they were working with over the course of the contract. If the two parties reach an impasse and cannot agree, then the contracting officer is allowed to make a unilateral determination of the costs to the contractor. This final determination by the termination contracting officer may be appealed by the contractor according to the Contract Disputes Act procedures. According to FAR 52.233-1 (which deals with disputes), if both parties reach an impasse, the contractor can convert their termination settlement proposal into a certified claim if they appeal to one of the Boards of Contract Appeals within 90 days or the Court of Federal Claims within one year of the notice of termination.

Challenging CPARS Evaluations

The FAR requires the government to “prepare evaluations of contractor performance for each contract … that exceeds the simplified acquisition threshold.” Such reports have been centralized in the CPARS database and are used in source selection evaluations. Because of this potential impact on future work from a negative evaluation, contractors are frequently interested in challenging or seeking to revise such a rating.

There is relatively little authority addressing the subject generally. Past performance ratings have come into use relatively recently, and prior to 2008, the ASBCA had held that it did not have jurisdiction to entertain any challenge to these ratings. The Court of Federal Claims held for the first time in 2008 (later affirmed by the Federal Circuit) that it had jurisdiction to entertain an appeal by a contractor challenging a performance rating. The courts have noted that, where an evaluation is required, it must be “fair and accurate.”

To perfect an appeal, the contractor should submit a separate, formal claim to the contracting officer, asserting its entitlement to a fair and accurate evaluation, requesting that its performance rating be changed, and requesting a final decision on this issue. The mere exchange of correspondence related to the performance rating will not constitute a “claim” that would create jurisdiction for an appeal.

The jurisprudence in this area has not fully fleshed out the available remedies for a successful appeal of a performance evaluation. The COFC, ASBCA, and CBCA all have held that a contractor cannot seek injunctive relief—i.e., an order directing that the negative performance rating be removed or changed. However, the court may issue a declaratory judgment—e.g., declaring that the performance evaluation was inaccurate and unsupported—and remand with directions that would “assist the agency … to address identified concerns,” but without issuing an actual injunction. Or, as the CBCA has put it, “[i]f we agree with a contractor’s challenge, we will say so, but ‘we cannot direct the Government to revise [an evaluation] in a particular way through some form of injunctive relief.’”

The standard of review of a challenged evaluation will differ depending on whether the contractor asserts that the government failed to comply with procedural requirements for preparing the evaluation or whether it asserts that the evaluation is substantively inaccurate. Procedural violations are subject to de novo review, but a deferential standard is applied to alleged substantive inaccuracies, and they will be overturned only if determined to be arbitrary or capricious.

Claims for Attorney Fees

The Equal Access to Justice Act (EAJA) presents a limited opportunity for contractors to recover attorney fees in successful claims against the government, as an exception to the usual “American Rule” whereby each party bears its own attorney fees. Under the EAJA, a prevailing party can recover its fees (as well as expenses, such as expert witness fees) if the government’s position was not “substantially justified.” However, the rate of recovery for experts is limited by the highest rate the government may have paid to its experts, and attorney fees are capped at $125 per hour “unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.”

In order to qualify for recovery, the contractor must be a small business (based on specific net worth requirements), a 501(c)(3) organization, or a cooperative association at the time the claim is brought. This means the contractor must have a net worth of less than $7,000,000 and fewer than 500 employees. The fee application must be made to the adjudicating body (i.e., the COFC or BCA) “within thirty days of a final disposition.” “Final disposition” does not occur (and the 30-day timeline for an EAJA application does not commence) until the government’s time for appeal has expired or such an appeal has been completed.

As noted, to prevail under the EAJA, a contractor must show that the government’s position was not “substantially justified.” The US Supreme Court has held that this phrase equates to a requirement that the government’s position does not “have a reasonable basis in both law and fact.” This standard tends to be difficult to satisfy in practice, and there is relatively little jurisprudence construing it. The standard can be met by, for instance, showing that the government’s position rested primarily on the uncorroborated testimony of an unreliable witness.

Pitfalls and Consequences

Three separate statutes—the False Claims Act, the anti-fraud provisions of the CDA itself, and the Forfeiture of Fraudulent Claims Act—all apply in concert and can expose a contractor to substantial liability for the submission of claims that do not have a reasonable basis in fact. In addition to the monetary consequences, any liability under these statutes could lead to a contractor’s suspension or debarment. Finally, the government may pursue criminal liability. A separate, criminal False Claims Act provides for potential prison sentences of up to five years, as well as monetary fines. Similar penalties are available under the False Statements Act. Accordingly, contractors must tread carefully in their submission of claims to the government.

False Claims Act

The False Claims Act (FCA) imposes civil liability on any party who, among other actions, “knowingly presents or causes to be presented a false or fraudulent claim for payment or approval” or “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” The FCA provides that any party making a false claim is liable to the government for a civil penalty of between $5,000 and $10,000 for each false claim and, in addition, three times the amount of damages that the United States may have sustained by reason of the doing or committing of such act (e.g., by making payment on a false claim).

A “claim” for purposes of the FCA includes not only any demand upon the government itself for the payment of money submitted by a contractor, but also situations in which a subcontractor makes a request to a government prime contractor and claims by a contractor to a federal grantee (e.g., a state agency that has received funding from the government) that has received or may receive payment from the government, in whole or in part, for the funds requested. Courts have held that each payment request (that is, each invoice, such as a monthly progress payment invoice) that is knowingly false constitutes a separate “claim” that may create liability under the FCA.

The definition of “knowingly” for purposes of the civil FCA is not limited to actual knowledge of the falsity of the submission, and also includes claims submitted with “deliberate ignorance” or “reckless disregard” for whether the claim was accurate. Further, the statute expressly makes clear that a contractor may be held liable even if there is no proof of any specific intent to defraud.

In light of the breadth of actions that may potentially constitute violations, courts have termed the FCA “the Government’s primary litigative tool for combating fraud.” In recent years, courts have applied the FCA to an increasingly wide range of actions. Most notably, the US Supreme Court approved the theory of “implied certification,” i.e., the situation in which a contractor submits an otherwise-accurate payment request but has withheld information regarding its noncompliance with other material contract terms. Other circumstances in which courts have found FCA liability include the defense of payment requests based on an “implausible” interpretation of contract terms; cases in which the government can establish the likelihood that the contractor deliberately understated its bid for a project in hopes of obtaining an award; situations where the contractor utilized an improper comparison of its equipment to published equipment rates in computing equipment costs, resulting in an overstatement of the equipment’s value (by a factor of 37); a case where the contractor utilized an overly simplistic “inefficiency ratio” in an effort to inflate the value of its claim; and where the contractor computed damages based on the run time of its batch plant using the recorded hours of the plant operator, despite the fact operating data from the plant itself were available.

Contract Disputes Act

Construction contractors working under government contracts also are subject to harsh and substantial liability for submitting fraudulent claims under the CDA. The government may recover from the contractor an amount equal to that part of the contractor’s claim attributable to fraud or misrepresentation. Section 5 of the Act provides as follows:

If a contractor is unable to support any part of the contractor’s claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, then the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of the Federal Government’s costs attributable to reviewing the unsupported part of the claim. Liability under this paragraph shall be determined within 6 years of the commission of the misrepresentation of fact or fraud.

The term “misrepresentation of fact” is defined as “a false statement of substantive fact or conduct that leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.”

Importantly, the remedies under the CDA provision exist in addition to other statutory remedies the government may have to combat fraud. This can result in substantial liability, even where the contractor’s liability exposure under other statutes, such as the FCA, may be more limited. In one extreme example, the Court of Federal Claims found a contractor liable for approximately $50 million in damages, where $50 million represented the portion of the contractor’s $63 million claim found to be fraudulent. But the Court of Federal Claims imposed only a single, $10,000 penalty for violation of the FCA because the government had not actually made any payment on the false claim.

Forfeiture of Fraudulent Claims Act

In addition to the possible penalties under the FCA and CDA, a third, wholly independent statute can result in the forfeiture of even valid claims if the contractor has committed fraud. The Forfeiture of Fraudulent Claims Act provides:

A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof.

In such cases the COFC is to specifically find such fraud or attempt and render judgment of forfeiture.

The application of this statute can be especially harsh because it requires the forfeiture of potentially meritorious claims that are unrelated to the fraudulent conduct. For instance, the COFC required a contractor to forfeit nearly $50 million in claims across several projects, where the contractor fraudulently failed to pass along to the government the discounts it had received for performance and payment bond premiums on the disputed contracts.

Suspension and Debarment

In addition to the sanctions already discussed, suspicion by the contracting officer of contractor fraud in connection with the submission of a claim may lead to the initiation of suspension or debarment proceedings. Suspension is an administrative action resulting in a temporary disqualification from government contracting because a concern or individual is suspected, upon adequate evidence, of engaging in criminal, fraudulent, or seriously improper conduct. There is a substantial amount of effectively unreviewable discretion that the contracting officer can exercise in relation to a suspension, making it a potent weapon for the government when substantial impropriety is suspected.

In order to allow sufficient time for the completion of an investigation, the procurement regulations allow suspensions for a period up to 18 months. If prosecutive action has been initiated within that time, the suspension may continue until the legal proceedings are completed.

A contractor also may be debarred on the basis of submitting fraudulent claims. The regulations provide that such debarments shall be for a reasonable time, generally not to exceed three years. No government contracts may be awarded to the offending firm within that time period unless a specific exception is made. For a contractor with a business model premised on government contracts, a three-year debarment can be a death penalty. The decision to debar is discretionary and all mitigating circumstances are to be considered in making the decision. The FAR provides for certain due process rights before a debarment can take effect, most notably notice and an opportunity to be heard regarding any challenges to the proposed debarment, and written findings of fact in situations where the contractor disputes material facts related to the debarment. The government’s failure to follow these procedures could provide grounds for a contractor to enjoin the debarment proceedings via a separate suit in federal court.

Conclusion

This article provides a starting point for discussion of the numerous procedural considerations unique to claims under government construction contracts but is by no means comprehensive. The CDA process of a certified claim followed by an appeal bears many hallmarks of traditional litigation (e.g., adversarial proceedings with typical discovery methods), but also diverges from the procedures common to arbitration or litigation in other significant respects (e.g., the jurisdictional predicate of a contracting officer’s final decision; the early preparation of a Rule 4 File in BCA proceedings). Such nuances can sometimes vex even seasoned practitioners, so close attention should be paid to procedural considerations during any engagement involving a claim or potential claim against the government.