Federal government contracts can be scarily complex with many unique rules, regulations and procedures not seen in private construction. This fear is emphasized by the old adage that when dealing with the federal government, you “must turn square corners,” meaning that any misstep among all the regulations and procedures can lose you your contract rights.
At closer inspection, however, that seemingly complex web of rules, regulations, and procedures actually provide a well-defined path of steps for a construction contractor to follow in order to preserve and pursue construction claims against the federal government -- the contractor merely has to connect the dots.
This article explains the basis for bringing a construction claim against the federal government, what is required to bring a claim, how and where to litigate an unfavorable decision, and the potential alternative dispute resolutions that are available.
The Contract Disputes Act
The Contract Disputes Act of 1978 (CDA) is the statutory scheme for resolving contract claims between contractors and the federal government. The CDA applies to all contracts entered into with the federal government for the procurement of property or services, the procurement of construction, alteration, repair, or the maintenance of real property; or the disposal of personal property. Under the CDA the term “procurement” means “the acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government.” However, the CDA does not relate to bid protests, which are considered part of the procurement process and are governed by separate federal regulations. The scope of the CDA extends to all matters “relating to the contract,” and includes claims for breach of contract, or any other claim based on a remedy-granting clause of the contract, such as the FAR Changes clause.
A contractor must be in direct privity with the federal government in order to bring a claim under the CDA. However, contractors frequently pass through subcontractor claims to the federal government. All claims must be submitted within six (6) years from the date of accrual. The claims accrue when all events that fix the alleged liability of the government were known or should have been known.
A contractor’s claim under the CDA must first be submitted to the Contracting Officer (CO) for a written final decision. If the contractor is not satisfied with the CO’s final decision, the CDA provides an avenue for contractors to appeal the decision, and essentially litigate before an agency administrative board or in a special federal court.
What is a “Claim” Under the CDA?
There are clear and mandatory requirements to submitting a valid claim under the CDA that must be followed. The term “claim” is defined by FAR 52.233-1, and there are numerous federal courts and board decisions which have established what information must be included in a claim under the CDA.
Written Demand
First, the claim must be a written demand to the CO requesting specific relief or rights based on the contract. Best practice is to provide as much detail as possible in the claim, including the factual basis of the claim, an explanation for why the contractor believes it is entitled to the remedy sought, as well as any supporting documentation which may assist the CO in reviewing the claim.
Clear Statement of Relief Sought
Second, the claim must include a clear statement of the relief sought, including identifying a specific sum if requesting money relief. Claims for approximate monetary amounts or “in excess of” a certain amount has been deemed insufficient and barred. This certainty requirement applies equally if the claim is for “an adjustment or interpretation of the contract terms,” which is specifically allowed under the FAR. Therefore, contractors should look to remove any doubt of the factual basis of the claim, as well as the relief requested.
Request for Final Decision
Third, a written claim must include a request for the CO to issue a final decision. As long as the claim is reasonably clear that the contractor wants a decision from the CO, this requirement may be met. Best practice is to make an explicit request for a CO’s final decision.
Certification of Claims Greater Than $100,000
If the aggregate amount of a claim exceeds $100,000 the claim must be certified. FAR 33.207 requires the certification include the following language:
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.
As required by the FAR certification language, the certification has four (4) primary elements: (i) the claim must be made in good faith, (ii) must include data that is accurate and complete, (iii) must accurately reflect the contractor’s claim for which it believes the government is responsible, and (iv) the person issuing the certification must be authorized to act on behalf of the contractor. Contractors should incorporate the FAR certification language verbatim and avoid any attempt to paraphrase or to dilute the FAR language, as doing so could potentially lead to a court or board dismissing a claim for lack of jurisdiction. Although defective certifications can be cured, failure to certify can later deprive a board or court jurisdiction to consider the claim and result in a dismissal, even later into the proceeding.
Request For Equitable Adjustment (“REA”)
Finally, a request for equitable adjustment (“REA”) is not a CDA claim because it generally lacks the specific requirements of a CDA claim described above. An REA also asks the CO for relief, but without the requirements of a CDA claim, the CO is under no deadline or obligation to respond. The informality of an REA may be received and reviewed by the CO on a more cooperative basis. If no progress toward resolution is achieved, the contractor can simply convert an REA to a CDA with a cover letter that meets CDA claim requirements, attach and incorporate the REA and resubmit the package as a CDA claim.
Contracting Officer’s Decision
The CO is granted sole authority to issue a decision to a contractor’s claim, which must state the reason for the decision reached and inform the contractor of its rights under the CDA, including the right of appeal. For claims less than $100,000, a CO shall issue a decision on any submitted claim within 60 days from the CO’s receipt of a written request from the contractor that a decision be rendered within that period. If a CO does not issue a final decision within 60 days, the contractor may consider the claim denied and appealed the denial, as explained below.
For claims greater than $100,000, a CO shall issue a decision within 60 days of receipt of a submitted certified claim or notify the contractor of the time within which a decision will be issued. However, if a CO does not issue a final decision within 60 days or fails to notify the contractor when a decision will be made, the contractor may consider the claim denied and the contractor is authorized to begin the appeals process.
If a CO decision will not render a final decision within 60 days, the final decision must be issued within a “reasonable time,” taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor. In the event of excessive delay on the part of the CO, an additional remedy available to the contractor is the right to request the tribunal concerned to direct a CO to issue a decision in a specified period of time.
A contractor will know when it receives the CO’s final decision as the written final decision is required to state substantially the following:
This is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number….
The final decision will also briefly state the contractor’s options of appealing to the agency Board of Contract Appeals (BCA), or bringing an action directly in the Court of Federal Claims (COFC).
Appealing a Contracting Officer’s Decision
The CO’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 in accordance with the CDA. Therefore, the CO’s final decision is what triggers the appeals process and allows for jurisdiction of the claim before a BCA or COFC or COFC. The BCA includes the Armed Services Board of Contract Appeals (ASBCA) and the Civilian Board of Contract Appeals (CBCA). The ASBCA, CBCA and the COFC each have jurisdictional authority to rule on a Contracting Officer’s final decision and have authority to grant any relief that would be available to a contractor, including non-monetary relief arising under the contract. Whether a contractor decides to bring an action with the appropriate board of contract appeals or the COFC, the action or appeal must be based on the same factual and legal bases as the claim decided by the CO.
Deciding An Appellate Forum
In deciding whether to bring an action with the appropriate board of contract appeals or the COFC, a contractor should consider several factors, including deadlines for appeal, the form of appeal, the counsel representing the federal government, and the ADR processes. Whichever forum is chosen on appeal, the contractor is bound by its decision. Contractors are not free to change forums after an appeal is filed. Both the COFC and the boards provide accelerated or expedited procedures which may allow for faster resolution of cases.
Contractors must adhere to strict time limitations for filing appeal to the CO’s decision. If a contractor elects to appeal to a BCA, the contractor must do so within 90 days from the date the CO’s final decision was received. If a contractor chooses to appeal to the COFC, the contractor must do so within one year of receiving the CO’s final decision. Failure to bring a timely appeal in accordance with the rules of either forum will result in the CO’s decision as final, binding, and conclusive. If there is a question or doubt about a deadline, best practice is to file immediately to preserve your appeal rights.
In addition to different time limitations for appeal, the BCA and COFC have different filing requirements. When appealing to the BCA, a standard notice of appeal may be filed and once the docketing notice is received, the contractor has 30 days to file and serve all documents relevant to the appeal, including the CO’s final decision, the contract, all relevant correspondence and documents, including affidavits, witnesses statements, and memoranda. Alternatively, commencing an action in the COFC requires a notice of filing, and the filing of a formal complaint within 28 days after service of notice of the filing. Further distinguishing the BCA and COFC is the different counsel representing the federal government. In the BCA, the government is represented by agency counsel whereas in the COFC, the agency is represented by an attorney from the Department of Justice.
Finally, the Court of Appeals for the Federal Circuit has exclusive jurisdiction over appeals from final decisions of the BCA and agency boards and from final decisions of the COFC.
Alternative Dispute Resolution
An increasingly popular method for resolving CDA claims has become alternative dispute resolution (ADR), which can offer reduced costs and accelerate resolutions quicker than a COFC or BCA judge’s ruling. Both the BCAs and the COFC have implemented ADR procedures to resolve claims and disputes. The ADR procedures are different within the BCAs and the COFC, and therefore the applicable ADR procedures can serve as an additional basis for which forum the contractor selects to appeal a CO’s decision.
Conclusion
A contractor looking to assert a valid and successful claim under the CDA can rest easier knowing that if the contractor follows the well-established rules and regulations under the CDA, the contractor’s claim will be considered on its merits. In addition to complying with the timing and scope requirements of the CDA, any claim should be reasonable, fully describe the operative facts, legal basis, and relief requested, and should include all documentation (i.e., detailed costs and factual data) in support of the claim.
Understanding your rights and options on appeal, including considering the likelihood of a government counterclaim and pursuing ADR are tactical decisions which require careful consideration and should involve experienced and competent counsel. Jones Walker has experienced construction attorneys that can advise contractors through all stages of the CDA process, including pursuing claims before the board of contract appeals or the COFC.