Construction Claims & Appealing Contracting Officer’s Final Decision

Avoid Getting Your Case Dismissed on Appeal.

A contracting officer’s final decision in federal government contracting carries a lot of weight. For example,  a contracting officer is the final authority for approving or denying construction claims or requests for equitable adjustments.  Small business contractor lawyers and non-government contracting attorneys often make costly mistakes by filing an appeal but mistakenly decides that the contracting officer has made a final decision when in fact a legal decision was not made.

The bad decision actually stops the appeals court from hearing your case because, without a valid final decision, appellate courts have no jurisdiction to hear and rule on the case.

The appeal of a contracting officer’s final decision to the Board of Court of Federal Claims on a government contract is tricky business. As a CEO or manager, your goal is to make sure that the contracting agency does not have a legal vehicle to delay payment. This can include negotiations, investigating the claim or some other reason. When you file an appeal, almost everything stops until the Board of Contract Appeals or the U.S Court of Federal Claims decides the case.

• Before filing an appeal always assess whether or not the contracting officer has actually made a final decision.
• Regardless of the type of claim submit, always ask for a contracting officer’s final decision.

Without a Valid CO’s Final Decision, the Agency Will Seek to Dismiss Your Case 

Without requesting the Contracting Officer’s final decision for a construction claim, or incorrectly deciding the agency’s communication is a final decision, on appeal the agency will immediately file a motion to dismiss your case for lack of jurisdiction.

• Although it is true that the words “final decision” are not required in order for the agency to have effectively given a final decision on a contractor’s claim, the less costly route is to ask for clarity in writing.

If you are appealing what arguably could be a final decision to the Appeal Board of COFC, your company,  as the appellant, bears the burden of establishing the court’s subject matter jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exchange Service. 846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA No. 58123, 13 BCA ,i 35,277 at 173,156. The CDA grants the appellate court’s jurisdiction over appeals from a decision of a contracting officer of any executive agency ··relative to a contract made by that agency.” Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (quoting 41 U.S.C. § 7105(e)(l)(A)).

Does a Void Contract Impact the Court’s Jurisdiction on Appeal?

The answer is generally no.  A voided contract introduces itself as a defense to enforceability and should not impact the court’s subject matter jurisdiction.

To establish jurisdiction under the CDA, government contractors need only allege that the existence of a contract, not prove that it is valid. See Dongbuk R& U Engineering Co ..ASBCA No. 58300, 13 BCA il 35,389 at 173,637 (citing Total Medical Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997)).

Whether a federal government contract actually exists relates to the merits of the appeal of the contracting officer’s final decision, not to the Board’s jurisdiction. Black Tiger Company, ASBCA No. 59189, 16-1 BCA ,i 36,423 at 177,570. Thus MSC’s  arguments regarding contract voidness are not ripe for consideration at this time. See Do-WellMachine Shop, Inc. v. United States, 870 F.2d 637,639 (Fed. Cir. 1989) (presence of a valid defense does not oust a tribunal of jurisdiction unless the defense is jurisdictional). Get information about contract flowdown clauses.

Definition of Contracting Officer’s Final Decision For Government Construction Claims

When it comes to government construction claims , a  government contracting officer shall issue a decision in writing and shall mail or otherwise give a copy of the decision to the contractor. An important point to remember is that when you receive the final decision is the timeline for filing your appeal starts.

Contents

Under 41 USC 7103 , the contracting officer’s final decision must state the reasons for the decision reached and shall inform the contractor of their rights. Specific findings of fact are not required. If made, specific findings of fact are not binding in any subsequent proceeding. 

The U.S. Court of Federal Claims in Volmar Construction, Inc. v. United States, 32 Fed. Cl. 746 (1995), held that the issuance of a payment voucher and inspection report by the government was a final decision, even though it did not “bear the magic words ‘final decision’ or contain information about the contractor’s appeal rights.”

In Volmar, the Court found that the contractor had completed the work and that the parties did not disagree on the original contract price or on it being due and payable upon the contractor’s completion of the contract.

The Federal Circuit held that even though “boilerplate language” is not required in a contracting officer’s final decision, an agency’s contracting officer’s decision must determine “both liability and damages.” As a government construction contractor, this is critical before filing a lawsuit.

• If you’re going to claim that there was a contracting officer’s final decision, you should also look to see if liability and damages have been resolved.
• On appeal, the court must have jurisdiction to hear the case.
• A contracting officer’s final decision creates that jurisdiction – without it, the court will dismiss your case.

Certify Government Construction Claims

Failure to certify or defective certification.— A contracting officer’s final decision is not required for construction claims over 100,000 that is not certified in accordance with paragraph (1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why any attempted certification was found to be defective.

A defect in claim certification does not deprive a court or an agency board of jurisdiction over the claim. Prior to the entry of a final judgment by a court or a decision by an agency board, the court or agency board shall require a defective certification to be corrected.

When submitting your claim, or even a request for equitable adjustment, always include the certification language.

Avoid Problems For Failure to Get a Federal Contracting Officer’s Final Decision

How long does the contracting officer have to issue a decision on a contractor claim? Failure by a federal contracting officer to issue a decision on a certified contract claim within 60 days is deemed to be a decision by the contracting officer denying the claim and thereby authorizes an appeal or action on the claim. 

The finality of Decision Unless Appealed: The contracting officer’s final decision on a contract claim is final and conclusive under 41 USC 7103 and is not subject to review by any forum, tribunal, or Federal Government agency unless an appeal or action is timely commenced as authorized.

• You have to proceed diligently with contract performance in accordance with the contracting officer’s decision.
• Filing an appeal does not give you the right to stop performance. 

What is the time to appeal the contracting officer’s final decision?

You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive the decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken.

• The notice of appeal shall indicate that an appeal is intended, reference this decision, and identify the contract by number.

Even if after filing a contract claims appeal, the agency issues a final determination, the court will still dismiss the case because when filing the appeal, there was no legal jurisdiction for the court to hear the case. See England v. Sherman R. Smoot Corp., 2 F.3d at 1571-72 (stating that once a claim is in litigation, the United States DOJ gains exclusive authority to act in the pending litigation, and this exclusive authority divests the contracting officer of his or her authority to issue a final decision on the claim).

• This means that you have to start the process all over.
• Without the contracting officer’s final decision, your access to operating capital is further delayed.

Do Not Rely on the Contracting Officer’s Directions for Appeal?

The cases are very divided on whether the contracting officer has to give you concise directions when he or she issues a final decision. However, it is up to you the contractor to know the rules. The courts are not very sympathetic to mistakes or complaints about the wording from the CO. See Soto Construction Company, Inc. v. Department of Agriculture, CBCA 3210.

To Avoid Costly Mistakes, Get a Free Government Claims Checklist

If you are in the process of filing a claim for or appealing the contracting officer’s final decision, protect your rights by calling Watson &. Associates’ government contract disputes and claims appeals lawyer for help at 1-866-601-5518.