Every week, the boards and courts dismiss numerous contract appeals due to insufficient or otherwise defective contract claims (like the case we featured in February). As a former U.S. Army contract trial attorney, I know this number is at least double taking into account unpublished decisions and contractor withdrawals. However, I also recognize that many of the issues warranting dismissal are easily avoidable.
This post provides a few practical considerations that will help avoid a contracting officer’s denial and/or appeal dismissal.
Basics. The congressional intent and purpose of the claim requirement is to encourage negotiations and avoid litigation. As such, a claim should cut through irrelevancies, provide all background information and focus the government’s attention.
Contractor Considerations. Prior to submitting a claim, contractors should understand the following issues related to government contract disputes process.
- Audience. Know the different players involved such as the program versus contracting offices and tailor your arguments accordingly. Keep in mind that the different offices usually have different missions, requirements, leadership and are dispersed geographically. Knowing your audience will also provide a realistic sense of the government’s review and approval timelines.
- What to Include. Do not presume the contracting officer is aware of, or will even consider, any information outside of your claim. The more documents the better and, above all, your detailed claim should be objective and based in hard facts.
- Jurisdiction. A claim is not an informal letter. Rather, a claim initiates the formal disputes process and serves as a basis for an appeal. Take the time to clearly articulate the jurisdictional requirements as if it were a court filing. If not, you will have to start all over when your appeal is dismissed.
- Amount Claimed. Your claim should start and end at what you are owed and what you can prove. Just because it is acceptable in the commercial sector does not mean it is acceptable in the government contracts sector. Deceitful negotiation tactics are counterproductive because without substantiating evidence, it is likely your claim will be denied, audited and/or investigated for fraud.
- Good Advice. Let’s face it, government contracts are different from commercial contracts – plain and simple. Prior to submitting your formal claim, it is essential to consult a government contracts attorney even if it is only to spot potential issues.
Government Considerations. For my former government colleagues, before you deny a claim or file that dismissal motion, remember that a board may exercise jurisdiction via its charter, contracting officers are not required for every procurement, the government can be required to file a complaint due to the nature of a final decision and lack of authority arguments may reveal an Antideficiency Act violation without first allowing local counsel to investigate or remedy the problem.
Why do I care? Before a government final decision, a well written claim increases the likelihood of resolution without litigation by allowing the government to coordinate internally while promoting focused substantive negotiations. After a government final decision and subsequent filing of an appeal, a well written claim saves time and money by narrowing the issues in dispute, avoiding jurisdictional motions and lessening cumbersome discovery.