Government contractors often find themselves in a precarious position when they file a request for equitable adjustment (Government REA Contracting Act) but later made the argument that it meets the requirements of a Contract Disputes Act claim.
Understanding the applicable laws can save contractors thousands in attorney fees when seeking a change order or increasing their chances of getting an equitable adjustment under the FAR.
REA Contracting v Contract Disputes Act Claim Change Order Requirements
When it comes to REA contracting and change order requests, the Contract Disputes Act states that ” a contractor claim against the Federal Government REA construction claims to a contract shall be submitted to the contracting officer for a decision.” 41 USC 7103 (a)(l). This is an important requirement when looking at the Board’s jurisdiction over a contract claim.
- Boards of Contract Appeals can only hear a contractor claim appeals case when you submit a legally sufficient claim for the contracting officer’s final decision.
The Contract Disputes Act does not define the term “claim.” However, when compared to the Government REA Contracting Act, the FAR defines a “claim” as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” See FAR 2.101. Furthermore, any claim that exceeds $100,000 must be certified under 41 USC 7103(b).
- Appeal Boards look at Contract Disputes Act claims on the merits and facts of each case.
- Appeal Boards use a “common sense” approach
Courts look at the totality of the correspondence between the contractor and the government when determining the sufficiency of a claim or change order request for adjustment. See Lael Al Sahab & Co., ASBCA Nos. 58344, 59009, 15-1 BCA ~ 35,809 at 175,129; Vibration & Sound Solutions Ltd., ASBCA No. 56240, 09-2 BCA ~ 34,257 at 169,270.
How long does a contractor have to submit a claim to the contracting officer? Depending on the facts of each case, your claim extra work for as a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim.
Submission of a CDA Claim and Change Order
Requesting Contracting Officer’s Final Decision: The Contract Disputes Act does not give a particular format or give any precise wording. Courts have ruled that government contractors need only submit “a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.” See Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987).
- A routine request for payment is not a claim under the CDA statute.
Can Request for Equitable Adjustment Submissions Satisfy CDA Contractor Claim Requirements?
The answer is yes. However, the commonly debated issue under REA contracting is whether the claim was submitted to the government for a contracting officer’s final decision. Companies must meet this requirement.
Contracting Officer Final Decision
Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision. Each claim by a contractor against the Federal Government relating to a contract shall be in writing
Courts have ruled that a request for a contracting officer’s final decision need not be explicit, however, but may be implied from the context of the submission. See Rex Systems, Inc. v. Cohen, 224 F.3d 1367, 1372 (Fed. Cir. 2000); Ellett, 93 F.3d at 1543. See Federal Circuit Court reverses Court of Federal Claims on REA claim for negligent estimates.
As a government contractor, you don’t want to take chances with free language. You will spend thousands in attorney fees litigating the question of whether your Government REA met the requirements of the Contract Disputes Act. When seeking a change order of equitable adjustment and extra work from the government, you should always seek legal review to make sure that your contract claim against the government meets the CDA requirements.