A common problem under the Contract Disputes Act of 1978 (CDA) when the subcontractor engages in a subcontract with the General Contractor seeking pass through rights in the event of a claim against the federal government. Understanding the various levels of disputes is critical to how subcontractors should proceed. Subcontractor rights can be a touchy subject when it comes to submitting your claim.
Pass through rights and subcontractor claims in federal construction projects and service contracts can become a nightmare for subcontractors when the claims are not properly handled by either the prime contractor or the government. The first level of analysis arises in the prime contract and the contents therein. The language must be clear that the prime contractor agrees to sponsor the subcontractor’s claim to the owner ( the federal government). Without this expressed language, it could be more difficult to force the issue. There are some arguments to be made. However, having the right language in the subcontract does help.
An argument can be made that small businesses that have passed through rights with the prime suffer a great deal because it has no rights under the Contract Disputes Act of 1978.
The only choices they have been:
- Do not sign a paid-if-paid clause or
- Hope that nothing goes wrong.
Realistically, these are not practical options for a new small business that needs subcontracting work. The remaining logical approach is for subcontractors to understand the rules under the Contract Disputes Act of 1978 when it comes to pass through rights. See information about Appealing Government Contract Claims.
What is the Contract Disputes Act of 1978?
Congress enacted the Contract Disputes Act of 1978 41 USC 601-613 to provide “a fair, balanced, and comprehensive judicial system of legal and administrative remedies in resolving government contract claims.” See Winter v. FloorPro, Inc., 570 F.3d 1367, 1369 (Fed. Cir. 2009) (citing Contract Disputes Act of 1978, S. Rep. No. 95-1118, at 1 (1978), as reprinted in 1978 U.S.C.C.A.N. 5235, 5235).
The CDA provides that a contractor can, upon receiving a final adverse decision from a contracting officer, either appeal the contracting officer’s final decision to an agency board of contract appeals or file a Contract Disputes claim against the government in the U.S. Court of Federal Claims under 41 U.S.C. § 7104.7. See Request for Equitable Adjustment – What is a Government Contract REA?
Services Contracts and Federal Construction Contracts
The CDA only applies to contractors that are parties to the contract. When you are a subcontractor on a federal construction or involved in a services contract, even with a pass-through government contract claims agreement, the courts repeatedly have held that, as a general matter, subcontractors lack privity of contract with the federal government and thus cannot bring a claim.
Do You Have Subcontractor Rights? What is a Pass Through Contract?
Many prime contractors in federal procurement hire subcontractors to do a percentage of work. When the subcontract has an indirect claim against the federal government, it may be able to have the prime contractor sponsor the claim to the government. However, the terms of the subcontract will address this obligation for the prime to act.
When it comes to and subcontractor rights in government contracting, the process starts with the general contractor submitting a claim against the government on the subcontractor’s behalf. Often in government construction contracts, the subcontractor presumes that the prime understands the requirements of the Contract Disputes Act. This is not always true. Therefore, federal government subcontractors seeking to protect their contract rights must do so early.
- Have an attorney that is experienced in federal contracts review the claim before the general contractor submits.
- If the contracting officer’s final decision denies the claim, the prime contractor should work with the sub’s attorney to prepare for an appeal.
In a Contract Disputes Act appeal to the Board of Contract Appeals or U.S. Court of Federal Claims, it is not valid to argue that pass through government contract claims rights from the prime contractor or entitlement to proceeds from a pass-through claim somehow avoids the privity of contract restriction.
Absent privity of contract, your pass through contract rights against the federal government under the Contract Disputes Act of 1978, can only be brought if the prime contractor brings the suit on your behalf as a pass through or sponsored claim. See E.R. Mitchell, 175 F.3d at 1373-74; see also Harper/Neilson-Dillingham, Builders, Inc. v. United States, 81 Fed. Cl. 667, 675 (2008).
You can only bring a CDA suit of this nature when the prime contractor has reimbursed its subcontractor for the latter’s damages or remains liable for such reimbursement in the future. If the main contractor somehow waives its rights to a government contract claim, subcontractor rights might also be arguable waived and the sub may be out of luck. See information about SCA fringe benefits.
The Contract Disputes Act of 1978 is supposed to resolve all controversies and issues by mutual agreement at the contracting officer’s level. However, this is not always the case. Contractors often find themselves in costly litigation when dealing with pass through agreements. The CDA is supposed to prevent this. See Construction Contract Claims Appeal for Government Contracts.
A common mistake made by subcontractors with pass through government contract rights is that they sometimes ask the agency to resolve a dispute with the prime contractor. See also CDA Statute of Limitations in government contract claims.
- It is the prime that must pursue the pass-through rights under the Contract Disputes Act of 1978.
- This occurs if you have a subcontract that provides for this obligation.
Has The General Contractor Submitted a Compliant Claim Under the Contract Disputes Act of 1978? Under the Contract Disputes Act of 1978, a claim is defined 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.”
- The contractor must submit the claim (which could include your pass-through contract claim and rights), in writing, to the contracting officer within six years after the claim accrual.
FAR 52.215 23 – Negotiate Subcontracts With Pass-Through Contract Language
This is a common problem. Large primes should develop a good subcontract that in essence protects the pass-through contract rights of subcontractors – typically small businesses.
A one-sided contract pass through language that in essence dumps the small business losses does not get the prime very far in the procurement community. On the other hand, subcontractors should negotiate contracts with pass-through language. Failure to accomplish this important task can produce fatal results. See additional information about the Severin Doctrine. See also, SBA Fraud Cases – Defending Government Contract Fraud Allegations.
40 USC 3133 Miller Act Remedies in Construction Claims Disputes: Sometimes in a construction claim or a pass through agreement dispute, the subcontractor’s only remedy may be to file a Miller Act lawsuit in the proper United States district court against the prime contractor. Avoid the Government’s Defense of Anticipatory Repudiation in Government Contracts.
As compared to the Contract Disputes Act of 1978, the Miller Act, 40 USC 3133(b), provides a subcontractor with the right to bring a civil suit against the prime contractor in the appropriate district court for unpaid labor or materials. 40 USC 3133 (b )(1 ), (3). A particular statute of limitations requires such a suit to be brought within one year after the last of the labor was performed or material was supplied. See 40 USC 3133(b)(4).
– Beware Of Pass Through Claims
As stated earlier, when it comes to federal contractor subcontractor disputes, subs with pass-through cost in contract claims agreements with government prime contractors can be at a significant disadvantage when applying the Contract Disputes Act of 1978.
- You may want to negotiate better terms for pass through rights in your agreement, or
- Have a government contract claims and disputes attorney to discuss the paid-if-paid clause in the subcontract before you sign it. The CDA is very tricky. Subcontractors beware.
For help with legal issues about federal pass through government contract disputes and subcontractor pass through contract claim rights under the Contract Disputes Act of 1978, call our government contracts attorneys for a FREE INITIAL CONSULTATION. Call 1-866-601-5518.