Understanding claims under the Contract Disputes Act is an essential skill for government contractors. Claims (and related requests for equitable adjustment) are by far the most common remedy for contractors seeking to recover additional time and/or costs from the agency administering the contract.
Part of understanding the claims process is appreciating what kind of impacts do – and do not – lead to recovery for the contractor. For example, and as I’ve covered before, contractor claims often arise in the context of differing site conditions (i.e., a subsurface, latent, or unknown physical condition at the project site that differs materially what is indicated in or anticipated under the contract). In order to successfully pursue a claim for a differing site condition, the contractor must understand the concept of “reasonable foreseeability” and document the actual damages incurred due to the changed condition.
Contractors seeking to recover based on project delays must conduct a related – but distinct – analysis. Generally speaking, the agency administering the contract is bound to act reasonably and timely respond to the contractor. If a contractor submits an RFI and does not receive a timely response (based either on a contract requirement or other reasonable standard), the government could be on the hook for the time and costs extending out from that delay.
However, any contractor seeking to recover for a delay must first be sure that its own house is in order – that is, that it acted in good faith in interpreting and performing the contract. A good example is presented in a recent Armed Services Board of Contract Appeals decision, where the Board denied the contractor’s claim for costs relating to alleged government delays.
The contract at issue was for the repair and calibration of a U.S. Air Force power supply unit. During its performance, the contractor claimed that it submitted requests for clarification related to its duties under certain contract CLINs. Because the agency did not timely respond to those requests (the contractor argued), the government bears responsibility for the corresponding delays.
In response, the agency offered a simple yet effective defense: If the contractor consulted its PWS, all of its questioned would have been answered in full. The Board agreed with the government. According to the decision, there was no evidence that the contractor was somehow prevented from accessing the PWS and – even though the government certainly could have been more cooperative – all of the information allegedly sought by the contractor was available in the PWS.
The case obviously presents an extreme example – reading the contract would seem to be an essential first step for every new project – but the lesson is still the same. The government can bear responsibility for delays, but the claim will far easier to support if there are not overriding or even competing faults on the part of the contractor.
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