Archives: Claims

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Buyer Beware—The Risks of Settling a Subcontractor Claim

Engineers team meeting and discussion about work plan and process with construction accessories and blueprint on table.A recent case from the Armed Services Board of Contract Appeals provides us with a reminder of what can happen to a prime contractor when it settles a subcontractor claim and then seeks to pass through the settlement amount to the government. In Kellogg Brown & Root Services, Inc., (November 19, 2018), the prime contractor… Continue Reading

The Court of Federal Claims Provides Guidance on Cardinal and Constructive Change Law

A recent case from the Court of Federal Claims provides us with a useful summary of several legal principles applicable to constructive changes and cardinal changes. The case arose out of a contract to supply mail processing machines to the U.S. Postal Service. In Northrop Grumman Systems Corporation v United States, 12-286C (October 31, 2018),… Continue Reading

Nothing Is Set in Stone: COFC Rejects Claim for Breach of the Duty of Good Faith Based on Contractor’s Unreasonable Expectations of Drilling Specifications

The Court of Federal Claims directed judgment for the Government in a case where nearly thirty percent of the anticipated drilling elevations were incorrect, yet the geotechnical report was clear that the contractor should not rely on those elevations as final. In Walsh Construction Co, v. United States, — Fed. Cl. —, No. 16-845 C, Continue Reading

Protest Alleging Unfair Treatment in the Evaluation Process Succeeds in the Court of Federal Claims

One of the most common, and challenging, arguments made in a post-award bid protest is that the contracting officer’s evaluation was arbitrary and capricious. The challenge with this argument is overcoming the substantial deference that the GAO and Courts grant to a contracting officer’s judgment. Because of this deference, it can be difficult to establish… Continue Reading

Government Contractor May Proceed With Delay Claim Notwithstanding Incomplete Project

A recent decision by the Civilian Board of Contract Appeals rejected the Government’s attempt to stay an appeal seeking recovery for delay damages “until the project is complete.” In CTA I, LLC v. Department of Veterans Affairs (March 9, 2018), the Civilian Board of Contract Appeals denied the Government’s motion to stay the appeal. The… Continue Reading

Contractor’s Inferior Knowledge and Mistakes Are No Excuse for Avoiding the Preclusive Effect of a Contractual Release

As the following decision demonstrates, careful recordkeeping can be critical to avoid forfeiting a claim upon the completion of a project with the government. Appeal of Merrick Construction, LLC, ASBCA No. 60906 (March 22, 2018). In Merrick, the Armed Services Board of Contract Appeals (“ASBCA”) found that a contractor forfeited a claim against the Army… Continue Reading

Agency Erred By Failing to Tell Offeror During Discussions That “Neutral” Past Performance Was a Weakness

In December 2017, the Court of Federal Claims ruled in favor of protestor Precision Asset Management Corp. after finding the agency failed to inform Precision that the agency assessed Precision’s “Neutral” past performance rating negatively. In 2014, Precision submitted its proposal for a Department of Housing and Urban Development property management contract. After the agency… Continue Reading

COFC Ruling Confirms Harsh SBA Decision Regarding Ownership Requirements of SDVOSBs

In late December, the Court of Federal Claims upheld an SBA decision revoking a Service Disabled Veteran Owned Small Business’ (“SDVOSB”) status on the basis the business failed in the unconditional ownership requirement set forth in the SBA’s SDVOSB regulations. In Veterans Contracting Group, Inc. v. United Sates, No. 17-1188C, the SDVOSB was determined not… Continue Reading

Government Contractor Awarded Equitable Adjustment for Negligent Quantities Estimate in Fixed Price Contract

A recent decision by the United States Court of Federal Claims reminds us how important the Government’s estimated quantities are, even in a fixed price contract. In Agility Defense & Government Services, Inc. v United States (October 18, 2017), the Court of Federal Claims awarded Agility $6,906,339.20, plus interest, representing the cost of additional, unanticipated… Continue Reading