When submitting construction contract claims against the Federal Government, or any service contract disputes, there are unique and dangerous rules and regulations that unaware companies. There is a common legal practice that many construction companies should be aware of.
It is called preserving your right for a potential appeal. A simple clue to start protecting your appeal rights is when there is a dispute about contract performance – regardless of how slight the issue might be.
- You cannot introduce new evidence on appeal.
- You cannot bring up new arguments on appeal.
Construction contract claims against the Federal Government are amongst the most popular in a government contract. Therefore, construction companies should make it a habit to get a legal review before submitting their claim to the contracting officer.
In high-stake claims, many government construction companies tend to prepare and present their claims without counsel review. Although the FAR and Contract Disputes Act may be transparent about the process, they do not tell you how to prepare for the appeal.
- There is more to submitting construction contract claims against the Federal Government than certification and documentation.
- A request should also include the language of any defense to a breach of contract.
You Must Provide Evidence of Any Defense at the Claims Submission Level
When the Agency alleges that you breached the deal, your defense should be duly perfected in the initial claim. Whether you believe that the government committed its breach of the contract which contributed to your failure to perform; or whether there was a situation that made performance impossible or impracticable by changed circumstances; or whether the construction contract claims in question was based on mutual mistake of fact; and/or whether the contract was unconscionable.
You simply have to put the contracting officer on notice early in the claims submission process. There are cases where construction contractors ended up paying the government millions because of the critical mistake.
Defenses to construction contract claims against the Federal Government also often arise in termination for default cases. Here, the government will not only terminate the contractor for default but would also seek to collect damages for additional costs to get the project completed.
- Even a termination for default case, you have to make the contracting officer aware of claims or defenses that you might have.
- As stated earlier, you cannot raise new evidence or arguments at the appellate level.
Be Aware of Agency Litigation Strategies on Appeal
When appealing construction claims against the Federal Government, this is when you will see the mistake of not making the agency aware of your concerns at the claims resolution and submission stage.
- The government will first try to dismiss your appeal by arguing that the Court lacks jurisdiction to consider any of your newly-raised defenses.
- As a result, your case will be dismissed because your failure to raise the issues at the agency level voids any genuine issues of fact – required at the summary judgment stage on appeal.
Understand the Underlying Legal Principles of Construction Contract Claims Against the Federal Government
Under the Contract Disputes Act, 41 U.S.C. §§ 7101–7109 (2012), presentation of a claim for breach to a contracting officer is a prerequisite to this Court’s ASBCA Rule of jurisdiction to hear construction claims against the Federal Government. Likewise, any defenses or evidence of defenses must also be raised at the Agency level. See also, Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003). See 41 U.S.C. § 7103(a) (providing that 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 also information about government contract release of claims.
Bottom Line When Submitting Construction Contract Claims
If you are a company filing a construction contract claims against the government, terminated for default or any other situation where you want to appeal the contracting officer’s final decision, make sure that you seek legal review before submitting your claim.
- Your claim, although documented, may not be preserving your right for appeal.
- Any defenses of concerns you have about fault or inability to perform must be discussed at the claims preparation and submission level.
For immediate help with construction contract claims against the Federal Government, call the construction contract claims lawyers at Watson & Associates. Call for a free initial consultation at 1-866-601-5518.