Government construction claims resolution and appeals in federal government contracts have become a nightmare for construction contractors that are filing disputes and appeals or initially submitting claims to the federal government. This is even true for settlement proposals in termination for convenience cases.
The COFC or Board of Contract Appeals dismisses your case due to lack of jurisdiction if businesses do not comply with the underlying statutory submission requirements.
Contractors must avoid some of these costly mistakes on construction claims resolution and appeal:
- Submitting a certified claim to the CO is critical for successful agency consideration for payment. You should certify the claim whether or not over $100.000.00
- Relying on the value of your claim to increase after they have been submitted for resolution can very risky
- Even when you provide a termination for convenience settlement proposal, you still have to meet the certification requirements for the appellate court to have jurisdiction.
Contract Disputes Act & Construction Claims Resolution Requirements: When it comes to resolving construction disputes on appeal, the court of appeal will always look to see if it has jurisdiction to hear your case. Understanding initial agency filing requirements can save you thousands in attorney fees.
Under the Contract Disputes Act (CDA) for a construction contractor to pursue an appeal, it must first submit a written claim to the Contracting Officer for final decision or deemed denial. When a claim exceeds $100,000, they must be certified under the CDA. See helpful information about construction scope of work changes.
Does the Government Have a Duty to Deal Fairly?
Yes, when litigating a government construction claims resolution and contract delay claim, you should remember that the Agency has a duty of fair dealing to pay for claims that were anticipated under the contract. The court will review the particular facts of your case to draw its conclusion.
The issue of good faith and fair dealing can be a tricky animal when disputing a claim. The best way avoid this level of claims resolution dispute is to make that you always communicate with the contracting officer early.
You also want to craft a construction claims resolution that explain what is different about the extra work done versus the requirements of the original contract. Lastly, make sure that you get the contracting officer’s final decision before filing an appeal. See information about equitable subrogation and Miller Act claims.
Can You Increase Your Original Construction Claims?
Generally yes. The federal circuit court of appeals has ruled in Santa Fe Eng’rs, 818 F.2d at 858, that although the contractor may not raise a new claim that has not been certified and presented to the contracting officer, the contractor may increase the amount of its construction claims. There are several contract appeals cases that support this position.
A common strategy to avoid costly mistakes in getting additional construction claims dismissed on appeal is to show that the modification to your claim arises from the same operative facts. If the court finds that you attempt tries to an entirely different claim, a construction contract claims for additional costs will be rejected. See Tecom, 732 F.2d at 937. The increased
Construction Claims & Termination for Convenience Cost
Under the contract’s Termination for Convenience clause, within one year after a contract is terminated construction contractors are required to submit to the CO a final termination settlement proposal for the purpose of negotiation. FAR 52.249-2(e).
When your final claim or settlement proposal is submitted for resolution, it is not a Contract Disputes Act claim. Only when negotiations reach an impasse, the settlement proposal can then ripen into a claim.
CO unilateral Determination: The Contracting Officer must then issue a unilateral determination, under FAR terms that will constitute the Contracting Officer’s final decision for construction claims resolution.
Although the termination for convenience clause does not refer to whether a termination settlement proposal exceeding $100,000 must be certified to ripen into a claim, case law makes clear that it must. See Consolidated Defense Corp., ASBCA No. 52315, 03-1 BCA ~ 32,112 at 158,780. Read additional information about the Miller Act Pay When Paid Clause.
- If your construction claims are not certified, the appeals court will throw your case out for lack of jurisdiction.
Call a Government Construction Claims Resolution Lawyer for Immediate Help
See information about our federal government contract consulting firm and how to deal with differing site condition claims
If you are contemplating filing a claim against the federal government, call a government construction claims resolution lawyer at 1-866-601-5518. FREE INITIAL CONSULTATION.