Contract Disputes Act | The Contracting Education Academy

November 23, 2020 By cs

ASBCA revisits email “signature” and finds typed name meets the test

In a departure from its prior precedent, the Armed Services Board of Contract Appeals (ASBCA) recently held in Kamaludin Slyman CSC, ASBCA Nos. 62006, 62007, 62008, that a typed name at the end of an email satisfies the certification requirement under the Contract Dispute Act (CDA), so long as it is discrete, verifiable, and conveys an intent to authenticate.

The contractor at issue submitted a $155,500 demand for payment to the Government in March 2013, thus, triggering the CDA’s certification requirement under FAR 52.233-1. The demand itself did not contain a certification, but the contractor sent a follow-up email just prior to the six-year statute of limitations, stating:

Hey Sir,

For contract numbers -12-C-0089, -12-C-0131, -11-C-0322, and the claims submitted in respect to them on March 16, 2013, 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.

Sincerely,

Kamaludin Slyman

Three days after sending this email, the contractor submitted an appeal to the ASBCA pursuant to a “deemed denial” and the Government moved to dismiss asserting that the contractor had failed to sign its certification and, thus, failed to certify its claim. The Board noted that the Government did not argue in its motion that the appeal was premature, as the requisite 60 days had not passed between the certification and the purported deemed denial. However, because at the time of its decision more than 60 days had elapsed since the certification, the ASBCA saw “no useful purpose in dismissing the appeal as premature and requiring appellant to refile.”

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/1003364/asbca-revisits-email-signature-and-finds-typed-name-meets-the-test

October 5, 2018 By AMK

ASBCA does not bar government claim to disallow contractor’s direct costs paid 11 years earlier

The Armed Services Board of Contract Appeals (ASBCA) recently held in DRS Global Enterprise Solutions, Inc. that the government’s 2017 claim disallowing fiscal year 2006 direct costs was not necessarily time-barred by the Contract Disputes Act’s (CDA) six-year statute of limitations.

The DRS decision is another in a line of statute of limitations cases that tend to enable the government’s practice of conducting untimely audits and subsequently asserting stale cost disallowance claims.

In September 2017, the government issued DRS a contracting officer’s final decision disallowing approximately $8 million of direct costs incurred in fiscal year 2006. DRS moved for summary judgment, arguing that undisputed facts establish that the government’s claim accrued more than six years before the final decision was issued and, therefore, the claim was time-barred by the CDA’s six-year statute of limitations. DRS set forth three alternative arguments for the date the government’s claim accrued. The ASBCA rejected all of these arguments.

First, DRS argued that the government’s claim for unallowable direct costs accrued no later than December 15, 2006, when the last voucher for the costs was paid. The ASBCA, citing to its prior precedent, stated that there is no “blanket rule” providing that the statute of limitations begins to run when the government pays a voucher or invoice. The ASBCA also distinguished its contrary holding in Spartan DeLeon Springs, LLC, ASBCA No. 60416, 17-1 BCA ¶ 36,601, from the facts of this case noting that, unlike in Spartan DeLeon Springs, DRS was not able to offer undisputed facts demonstrating that DRS’s vouchers contained sufficient information concerning the government’s potential claim.
Second, DRS argued that the government’s claim accrued no later than March 31, 2008, when DRS submitted its final indirect cost rate proposal containing the costs at issue. The ASBCA rejected this argument because the undisputed facts did not support that the final indirect cost rate proposal information addressed the specific bases for the government’s disallowance claim and, thus, DRS failed to establish that the government’s potential cost disallowance claim was “reasonably knowable.”
Finally, DRS argued that the government’s claim accrued no later than July 17, 2009, the date of the Defense Contract Audit Agency entrance conference. The ASBCA rejected this argument as well, reasoning that there was nothing in the undisputed record establishing that the auditor should have been aware of the government’s potential claim at the time of the entrance conference. In sum, the ASBCA found that DRS failed to offer sufficient undisputed facts to supports its positions.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=737536

April 18, 2018 By AMK

Rule changes proposed for appeals under the Contract Disputes Act

On March 28, 2018, the Federal Register published proposed changes to the Civilian Board of Contract Appeals’ (“Board”) Rules of Procedure regarding appeals under the Contract Disputes Act (“CDA”).

These proposed rules indicate that the Board wishes to: simplify and modernize access to the Board, clarify certain rules, and increase conformity between its rules and the Federal Rules of Civil Procedure (“Federal Rules”).

A side-by-side comparison between the Board’s current and proposed rules can be found here.

Key takeaways from the proposed rule changes can be found here.

Interested parties may submit comments by May 29, 2018.

November 25, 2016 By AMK

Boards of Contract Appeals will prod contracting officers to issue final decisions

The Armed Services Board of Contract Appeals (ASBCA) recently demonstrated that it is willing to help government contractors who are waiting many months for a contracting officer to issue a final decision on a pending certified claim.

asbca As background, the government contract claims process is supposed to be efficient, providing for the “informal, expeditious, and inexpensive resolution of disputes,” as the Contract Disputes Act (CDA) states (see 41 U.S.C. §§ 7101-7109). But that’s easier said than done. All too often, when a contractor submits a written request for equitable adjustment (REA) or certified claim, the Contracting Officer (CO), for whatever reason, doesn’t “expeditiously” issue a final decision. Sometimes, it may seem that the government is just sitting on the claim, without giving it due consideration at all. What’s a contractor to do to spur the CO to act? This may be a touchy subject for some, but there are a few alternatives.

Some contractors elect to do nothing and wait out the CO, although this isn’t necessarily a good option. After having raised a dispute by asserting a claim, some contractors are reluctant to press for a final decision, feeling, rightly or wrongly, that demanding issuance of a decision may impact the CO’s view of the merits.

Less timid contractors realize that contract administration is a two-way street and that even Uncle Sam has a legal obligation to respond and act.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=543606