If you’re cutting a deal to work out a change order, price adjustment, or something similar - watch out for boilerplate release clauses! It’s tempting to gloss over the fine print to pin down a settlement, get paid, and move on. But, if there’s something lurking on the edges that could come up later, think carefully before you sign.
Read MoreService Contract Act (“SCA“) covered fixed priced contracts generally have one of two FAR clauses for price adjustments — either FAR 52.222-43 or -44. But there are different price adjustment clauses and provisions for cost reimbursement contracts. Where the SCA provisions and the standard cost reimbursement clauses overlap is in hybrid contracting, involving both fixed price and cost reimbursement CLINS. In those circumstances the overlapping price adjustment issues can be murky.
Read MoreThe presumption that agency officials act in good faith often excuses lackluster contract administration. In this case, the Court of Federal Claims held that, even when officials “earnestly” do their best, a lack of guidance can constitute a breach of the duty of good faith and fair dealing.
Read MoreIf a government contractor has a bone to pick, figuring out who to complain to can feel a lot like a customer service phone tree. If you press three instead of one, you can find yourself being transferred to another department after hours of being on hold. Or you can get completely different answers depending on who you speak to.
Read MoreThe refusal of the Government to pay for undisputed costs unless the contractor signs a release of all costs (disputed or not) seems heavy handed. A recent case holds that a government contractor cannot claim that the release was obtained through economic duress when litigation is an alternative.
Read MoreContractors who have disputes with the Government must first submit a claim to their Contracting Officer for a final decision. If they don’t like the outcome, they can appeal the Contracting Officer’s Final Decision. Two recent decisions address what happens when you have a new idea after the fact.
Read MoreThat seemingly benign boilerplate is not toothless throw-away verbiage. When negotiating a contract modification that pays a claim or resolves a dispute, consider whether there are contingencies you might be waiving. Bottom line - stop and think before you sign.
Read MoreWe’ve all heard the old adage that a deal’s a deal. The Armed Services Board of Contract Appeals recently demonstrated how this adage can cost a federal contractor a fair chunk of change when it comes to the cost of increasing wages owed to service contract employees—especially for work performed overseas. Bottom line - carefully determine what your contract requires for service employee wages and benefits. Then, make sure your proposal meets those requirements and ensure that you’re protected from the shock of increased costs.
Read MoreThe triangular relationship between the Government, prime contractors, and their subcontractors provides fertile ground for disputes to arise. How parties allocate the risk of losses caused by Government acts can cause a claim to disappear. The recent ASBCA decision in Appeal of JAAAT Technical Services, LLC, ASBCA No. 62373 (Oct. 26, 2020) reminds us how to prevent claims from disappearing in a contractual Bermuda Triangle.
Read MoreUnder the FAR SCA Price Adjustment clause, notice must be furnished to the Government within 30 days of receipt of a new wage determination to be incorporated into a contract in the option or extended period of performance. But that notice proviso is not interpreted strictly and it should not be used to bar price adjustment claims as per se untimely after the 30 day window has past.
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A dispute over the obligation to deliver replacement batteries for golf carts illustrates how years of contract performance can create confusion (and discord) over what happens at the end of a contract.
Read MoreYou just won a contract. You brought that brilliant project manager on board. Then, your competitor files a protest and you have to stop work. What do you do to keep that manager in the stable? A recent case at the Armed Services Board of Contract Appeals denied a contractor the cost of doing something quite reasonable—keeping the manager on board.
Read MoreThe Government usually is a good customer that pays its bills, except when it doesn’t. Can a contractor pursue a claim for an unpaid invoice? It will depend on whether the government had a reasonable time to review and pay the invoice.
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