Breach of Contract Claims Against the Federal GovernmentAs a contractor doing business with the federal government, there is often the question of whether there is breach of contract claims against the federal government. Whether the answer is yes or no is left to the court. However, before you reach this phase you must first understand the basics of how to file a contract claim against the federal government.

Both claims for services contracts and federal construction projects are common. Yet, none of them are pleasant experiences when the government does not rule in your favor.  When your company has some level of challenge to the government’s inaction or action, you must first turn the the Contract Disputes Act to see if there is a legal remedy. 

Is Your Contract Claim Against the Federal Covered Under the Contract Disputes Act? 

Not all federal contract claims and disputes are regulated by the Contract Disputes Act. You want to have your atttorney first assess whether or not your claim is covered because you can spend tens of thousands of dollars if it is not.  Type of federal contract claims that are covered under the CDA statute include:

  • Contract post-award monetary claims
  • Breach of Contract and Claims
  • Justified claims for additional performance
  • Non- Monetary Claims (Compliance with contract terms, contract interpretation, duty of good faith and fair dealing) 
  • Contract claims arising out of an implied-in-fact contract 

What Types of CDA Contract Claims Against the Government Not Covered?

Not all claims against the federal government are covered under the Contract Disputes Act. Small businesses and other DOD contractors can spend tens of thousands or even hundreds of thousands of dollars only to find out that their claims are not covered under the CDA. This can be a very painful experience. Tje following are but a few types of government contract claims not covered by the statute.

  • Government tort claims
  • Davis Bacon Act and prevailing wage disputes
  • Pre-award contract disputes

However, when and how you pursue the breach claim can be tricky and costly when the Contract Disputes Act process is not followed.  

Avoiding costly mistakes in litigating contract claims against the federal government is always the ultimate goal of any contractor.

Sample Court Decision

The Court of Federal Claims in the case of TPL, Inc. v. United States, No. 11-482 C (Sep. 16, 2014) ruled that a contractor’s failure to file their breach of contract claims with Contracting Officer precluded it from alleging government breach of contract as a defense to Government’s own breach claim.

After receiving the contracting officer’s final decision under a facilities use contract with Army, TPL, the plaintiff’s government contract attorney on appeal tried to counterclaim the Army’s demand for reimbursement for $11,958,046.72 for certain expenses.

The demand came with the contracting officer’s final decision. After the contract claims appeal was filed, the federal government filed a counterclaim for breach of contract, requesting damages for the above amount.

Untimely Federal Breach of Contract Claims Against the Federal Government Thrown Out By Court On Appeal

Contractors can lose millions of dollars if a breach of contract claims against the federal government are not filed at the proper time. In TPL, the Court of Federal Claims simply lacked jurisdiction because the contractor had not first raised its breach claims at the contracting officer level.

  • The Contract Disputes Act sets the timeliness for filing your claims.
  • Preparation and documentation are essential when submitting your package to the government.
  • Consider potential counter claims by the Agency while assessing your case.
  • Part of filing federal breach of contract claims against the government is to keep your right to appeal at the initial stages.
  • You cannot raise new claims on appeal.

In TPL, the government filed a motion for summary judgment because the Court lacked jurisdiction to consider TPL’s defenses. TPL did not file a contract claim or otherwise raise the affirmative defenses to breach of contract before the contracting officer.

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Defending Breach of Contract Claims Against Contractors by the Government

If the government requests damages from you, the contractor, you must at least show that the government failed to reasonably mitigate its damages. This contract defense is available so long as you put forth facts to support your affirmative defense.

  • Just like any government breach of contract claims case, any defense to the agency’s claim for damages must also have supporting evidence.

Breach claims must be brought under the Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2012). Under that Act, presentation of a breach claim to a contracting officer is a prerequisite to the Court of Federal Claim’s jurisdiction to hear the case on appeal.

All claims by a contractor against the government shall be in writing, submitted to the contracting officer for a decision, and certified if more than $100,000). See more about board jurisdiction.

Read more about government contract affirmative defenses and government contract claims certification language.

Contract Claim Deadlines

Pursuant to the Tucker Act, you must file claims against the government within six years after the claim first accrues. There is much litigation about the deadline occurred.  Courts look at when all of the events occurred that would then fix liability on the Government.

Sovereign Immunity

The Government has argued several times that it can invoke sovereign immunity. However, the general rule is that there is no waiver of sovereign immunity. When the government consents to be sued, then you file a  lawsuit. By enter into a contract under the Contract Disputes Act, the courts find that the Government has waived its immunity.

Court Jurisdiction

When you file cases concerning contract claims against the federal government, the Contract Disputes Act allows the Court of Federal Claims and the various boards of contract appeals to head cases and contract appeals of claims between you, the contractor, and the U.S. Government. Contracts can be expressed or implied

To avoid costly mistakes in breach of contract claims against the federal government, call our claims and disputes attorneys at 1-866-601-5518 for a free initial consultation.

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