Government Construction Claims and Appeals

When submitting federal government construction claims or appeals, the result usually lies in your justification for the claim, whether you met the Contract Disputes Act requirements and whether there was actually a contracting officer’s final decision.

In addition, when submitting a differing site condition for a construction claim, the Federal Claims Court or Board of Contract Appeals also looks to see if you gave the government adequate notice with respect to your differing site condition construction claims, your claim of a defective design, or your claim of a constructive change to the contract.

Differing Site Condition Construction Claims

Your should focus on submitting a construction claim earlier than later. This is true because the later you wait, you might also experience problems because of critical government personnel leaving, retiring or relocating.

If you appeal government construction claims, the court will seriously look at your right to entitlement. You must show entitlement on a Type 1 differing site condition claim,  by the preponderance of the evidence that “[1] the conditions indicated in the contract differ materially from those actually encountered during performance; [2] the conditions actually encountered were reasonably unforeseeable based on all information available at the time of bidding; [3] you reasonably relied upon its interpretation of the contract and contract-related documents; and [4] your damages were a result of the material variation between expected and encountered conditions.”

Federal government construction contracts claims lawyers sometimes miss this requirement. This could cause you more attorney fees in the litigation or appeal process.

 Timely notice of construction claims to the government. In attempt to escape liability in federal construction claims, the agency may attack the timeliness of your notice. You should not rely on verbal communications to win you case. Instead, send written communication to the contracting officer.

Of importance, construction claims will not be barred unless the government can affirmatively demonstrate that it was prejudiced as a result of the lack of notice. 

Appealing construction claims to the Board of Contract Appeals. When you receive an adverse decision from a contracting officer’s final decision, you can appeal government construction claims to the Board of Contract Appeals. The critical point is that you must ensure that the board actually has jurisdiction to hear your construction claim.

The Board derives its jurisdiction to hear appeals from the Contract Disputes Act (CDA), 41 U.S.C. § 607(d) which states: “The Armed Services Board shall have jurisdiction to decide any appeal from a decision of a contracting officer… relative to a contract made by [the Department of Defense or component agency].”

A common mistake to avoid is appealing denial of a claim for contract interpretation that does not include a separate monetary claim for consideration by the contracting officer.

The Board lacks jurisdiction over any request for monetary relief found in the complaint for an appeal. See Dick Pacific/GHEMM, JV, ASBCA No. 55829, 08-2 BCA ¶ 33,937 (portions of complaint stricken as claim did not include a request for release of withholdings or liquidated damages).

What are common contractor problems with federal construction delay claims?

Common contractor problems concerning federal construction delay claims include inadequate scheduling, failing to properly schedule work, and not preparing claims documents in accordance with the FARs. Contractors must make sure that all delay claim documents are prepared in accordance with applicable regulations and that any requested relief is clearly stated in the complaint or otherwise provided to the contracting officer. Additionally, contractors should be aware of time limitations on filing claims, as these will vary depending on the basis of the claim. It is also important to note that contractors may be required to prove their damages, including proving that the government was at fault for any delays and providing a calculation of delay costs incurred. Finally, if an agency requests a release of withholdings or liquidated damages, the contractor must ensure that this request is within the scope of the contract and in accordance with FARs. 

Contractors must also consider any limitations on their ability to pursue a claim or relief against the government, including any applicable statutes of limitation. In addition, contractors should ensure that all construction delay claims are submitted in compliance with the terms and conditions of the contract. Contractors may need to provide documentation such as payment records, invoices, and other supporting documents to substantiate their claims. The contracting officer will review the documentation and make a determination on whether or not to grant relief in whole or in part. If a contractor’s claim is denied, they must then decide whether to pursue further legal action and/or dispute resolution options available under the FAR. 

Liquidated Damages Construction Claims.

When the government asserts liquidated damages against you, a question arises as to whether you must obtain a contracting officer’s final determination. The government does not have to “certify” its own claim against a contractor. An experienced federal government construction contracts claims appeal lawyer should assert that there is sufficient jurisdiction because  the contracting officer made a final decision on the government construction claim asserting liquidated damages and you filed a timely appeal from that final decision. See  Placeway Construction Corp. v. United States, 920 F.2d 903, 906-07 (Fed. Cir. 1990); cf. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010) (contractor’s separate claims for time extensions and  related contract modifications had to be certified); Sikorsky Aircraft Corp. v. United States, 102 Fed. Cl. 38, 47-48 (2011).

When the government assesses construction claims against you, you want to also present facts that any causes of damages were not due to a situation that is your fault or within your control.

For help with federal government construction claims litigation or appeal, call our lawyers at 1-866-601-5518.