08/31/2018

Editor’s Notes

When a federal contractor seeks a price increase, the contractor may submit an informal request for a price adjustment or a formal “claim.” Under the Contract Disputes Act, a claim that exceeds $100,000 must be certified for accuracy. The government contracting officer issues a final decision on the claim, which triggers a 90-day appeal period. If the contractor misses the statutory deadline, the contractor loses its appeal rights.


This raises a question: Can the government issue a final decision on an uncertified request in excess of $100,000, triggering the appeal period even though the contractor did not submit a claim? The answer, surprisingly, is yes.


By granting a payment request in a diminished amount, the government is affirmatively asserting the right to an offset against contractor payment. This is a government claim. The government may issue a final decision on this claim and start the 90-day appeal period. A contractor that failed to appreciate this subtlety lost its appeal rights. Those rights could not be revived through a subsequent certified claim.


The other case in this issue involved a flawed bid solicitation. A proprietary specification could not be met without violating a limitation on subcontracting.

 

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