|
|
|
Resources
Teaching and Legal Research
|
|
Mr.
Holmes has lectured and performed legal research extensively over his
professional life. Mr. Holmes has been a visiting lecturer at the
University of Virginia Law School, the George Washington
University Law School,
and most recently at the University of Iowa Law School. These teaching
assignments have been directed towards a professionals approach to
government contract law, policy, and litigation.
|
|
|
Mr.
Holmes feels strongly that it is important for lead partners to do direct
legal research themselves on procurement contract issues and other
related topics. While one can always read the regulations and listen to
other people's positions and interpretations of them, the only way to
tell what will happen with some reasonable predictability in litigation
is to review actual previous case decisions by Courts and Boards that
deal with factual scenarios that are the same or similar to the issues in
dispute as to the client's matter at hand.
|
|
|
Mr.
Holmes has also had long-term business alliances with Federal
Publications, Inc. and the Contract Research & Analytic Institute
(CRAI). CRAI's website [http://www.contractinstitute.com/] contains extensive
additional information as to the nature and type of research that the
firm continually performs in the procurement area. In addition, current
seminars being taught by Mr. Holmes are displayed on that website, and
can be viewed at the following link -- http://www.contractinstitute.com/docs_crai/services.html.
|
|
|
Teaching
consistently is also important. We find that course attendees often raise
questions in lectures that cause us to think about our past approaches to
issues and contract litigation, and further stimulate our thinking as to
new and different means by which to solve our clients' problems before or
after litigation starts.
|
|
|
Legal
research and listening and interacting with students are important
professional development techniques in all professions. Yet, many lawyers
neglect this critical element in professional development. It is not
neglected in this law firm.
|
The Government Contract Claims Process
|
|
The following excerpt from Contract Research &
Analytic Institute's Government Contract Claims publication provides an
example of the types of information that the partners provide through
CRAI's numerous texts.
|
|
|
Claim certification, the timing of claim submission,
the claim's content, and the proper identification of individuals
permitted to make contracting decisions, are the principal claims preparation
and defense factors to be considered in all of the varying contract
scenarios at the Federal, State, and Local levels, as well as in the
commercial contract arena.
|
Claim Contents
Under
the Contract Disputes Act, the contractor must include the following
information in submitting its claims to the Government:
- Written Narrative
|
|
A written narrative statement of the issues, the
facts, and the resulting bases for entitlement to increased costs or
other relief being sought from the Contracting Officer. (This can be a
fairly simple statement if the issue is not complex).
|
- Quantification.
|
|
A
quantification of the amounts the contractor seeks from the Government.
There should be some statement of monetary amount and hopefully some
backup for how such an amount was calculated. The contractor should also
be clear as to requests for non-monetary relief - i.e. the interpretation
of a particular specification (which could cost it money in the future if
misapplied).
|
|
|
Note
that the foregoing two items are exactly what one would expect to put in
an REA to the Contracting Officer informally to explain the issue at hand
and how it arrived at its costs.
|
|
|
To make the
foregoing two-part presentation into a CDA claim the contractor need only
add the following:
|
- CDA Certificate.
|
|
For
claims over $100,000, a CDA certificate as prescribed in the FAR is
required; no CDA certificate is needed for claims under $100,000.
|
|
|
Who
signs the CDA certificate? There was a time of significant debate and
litigation over whether the correct person signed the necessary claim
certificate -- i.e. over $100,000. Many contractors felt obliged to have
the President of the Company sign such certificates in order to preserve
their right to recover interest, and to avoid losing momentum in their
claim processing procedure.
|
|
|
Congress
changed the CDA in 1992 (P.L. 102-572, codified at 41 USC 605(c)). This
removed the requirement in effect that the President sign such
certificates. The current law allows company officials to sign who are
"duly authorized to bind the contractor with respect to the
claim". FAR 33.207(e)
|
|
|
Most
importantly, the changes made in 1992 also support the position that if
there is any problem with the certificate, it can be corrected after the
fact and does not result in a change to the certification date.
|
|
|
This
is particularly important as to interest recovery, as well as in avoiding
the loss of momentum during the claims process by needing to resolve
debates over procedural issues that are really inconsequential. This
allows the parties to focus on resolving issues to both sides
satisfaction based upon the facts and applicable legal principals.
|
- Demand for Final Decision
|
|
Contractors
must demand a Contracting Officers final decision -- those words should
therefore be included.
|
|
|
As
with REAs, there is no exact form which must be utilized in order to perfect
a CDA claim. While we are comfortable that the foregoing information and
outline is sufficient, you need not follow it exactly in order to perfect
a CDA claim.
|
|
|
But,
logic and commonsense would tell you that as a minimum you should inform
the Contracting Officer of the basis for entitlement, and how you
quantified your requested recovery. In addition, you should include a
certification and demand for a final decision.
|
|
|
The
Board and Court decisions are fairly relaxed in terms of requiring the
contractor to include certain specific information in its CDA claim. Most
documents that fairly notify the contracting officer of the facts
surrounding the claim, and the amount requested, will be found to satisfy
CDA claim requirements.
|
- Timing Your Claims Submission
|
|
This
topic often arises in discussions as to the best strategy for timing the
submission of extra work claims. Should they be submitted in small
increments as the work goes forward (is that inefficient?) or should they
be accumulated and submitted towards the end of contract performance?
|
|
|
Often
times the Marketing Department's views of what is best for the company will
come into play, and it will request/insist that the claim should not be
submitted on existing contracts because: "we are bidding on new
work," "the Government will be irritated by the submission of
claims," or "they think badly of us and it will affect the new
awards."
|
|
|
Also,
it is often stated by contractor personnel that it is impossible to price
individual claims on a stand-alone basis. The total impact of the claim
can only be shown as a group of claims that are aggregated.
|
|
|
|
|
|
While
the foregoing are common statements and concerns by management elements,
they are in almost every case contractually and legally incorrect.
Moreover, from a management strategy point of view, they reflect
incorrect analysis and conclusions. Why do we say this?
o
First,
going back to basics, the changes clause and most other remedy granting
clauses in the standard Government contract, i.e. Government furnished
property, suspension, stop work clause, all require that any claim for
increased compensation be at least asserted within thirty days of the
occurrence of the events at issue.
o
The
case law is not strong in the Government's favor in terms of enforcing
these particular provisions. By that we mean that if the case were
litigated in a Board or a Court, and the Government's sole defense was
lack of a thirty-day notice, the Government will most often lose.
o
But,
this situation does not detract from the fact that there is a contractual
obligation to assert the claim within thirty days and that a contractor
who does not do so should appropriately be criticized by Government
officials for that failure.
o
We
believe that more practical issues forcefully support the contractual
requirements for prompt submission - the need to maximize cost recovery
and the promptness of recovery.
|
|
|
|
