By Bruce Jervis
Most contractors on federal construction projects are at a significant disadvantage in disputes with the agencies with which they do business. The federal government has such a vast array of personnel and resources that only the largest private companies can hold their own.
Statutes such as the Contract Disputes Act and the Equal Access to Justice Act level the field to a certain extent. However, one area where the disparity of power remains evident is the “discovery process” – the pre-hearing disclosure of information and documents.
In a recent case, the U.S. Department of Veterans Affairs ignored contractor document requests for months, ignored deadlines established by the Civilian Board of Contract Appeals, and otherwise engaged in what the board characterized as an “egregious abuse” of the discovery process. But, unlike the federal courts, the board lacked authority to impose financial penalties. It could only order access to the documents by an appointed third party.
The U.S. Court of Federal Claims, another forum for appealing a contracting officer’s denial of a claim, does have authority to impose financial penalties. However, this is a more costly forum than the federal administrative boards, which hear the large majority of contract appeals. What has been your experience? Are federal agencies abusing the discovery process with impunity? I welcome your comments.
