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By Anon on Wednesday, May 01,
2002 - 02:16 pm:
I think we all agree that the contractor's REASONABLE pursuit of
a contractual remedy should not be held against that contractor.
By Vern Edwards on Wednesday,
May 01, 2002 - 02:37 pm:
Perhaps we all agree, but that leaves the question: What's
"reasonable"?
Is it reasonable to submit a claim before first submitting a
non-claim REA?
Is it reasonable to submit a claim after the contracting officer
says he doesn't think an REA is valid either in basis or amount?
Is it reasonable to submit a large number of claims, even when
"defensible"?
Is there a dollar threshold below which the submission of a
claim is unreasonable?
Is it reasonable to prefer appeal to a board or court instead of
participating in alternative dispute resolution?
By sineQ on Wednesday, May 01,
2002 - 02:49 pm:
In FARA response 30 April mention is made of a GAO
decision...does any one know the B number?
By Vern Edwards on Wednesday,
May 01, 2002 - 05:32 pm:
Fara Fasat:
I know that you think this thread is disgressing via the
reasonableness issue, but it's not. What we are gaining through
the discussion of the reasonableness issue is some insight into
the reason why OFPP issued the memo in the first place, which
has to do with the attitudes of some government personnel toward
claims. Whether or not a person thinks the memo is in the
government's interests depends in some measure on how they feel
about claims.
If you have more to say or ask about the memo, then say or ask
it. But please don't try to disrupt the discussion that the rest
of us are having. It is revealing in a way that is very
pertinent to the memo.
By Fara Fasat on Wednesday, May
01, 2002 - 07:43 pm:
Vern - just trying to break up a long thread into a logical
subpart. When you click on any post, the entire thread loads.
This can take quite awhile if you don't have the luxury of a
fast connection, and it takes up a lot of bandwidth. It also
makes it very difficult to find a comment when you have to scan
through 100 posts.
It seems to me that the question of what is a reasonable claim
goes beyond the original question about the memo, and is
deserving of its own discussion. Nevertheless, if wiser minds
say it belongs here, then so be it. I'm here for the discussion
on contracting issues, wherever it lands.
By Vern Edwards on Wednesday,
May 01, 2002 - 08:38 pm:
Fara:
Well, you make sense.
I just hope that we can continue to discuss the issue of claims
and their place in contractual relations. It's a matter that has
come up before, and I think that we have a chance to discuss it
now and, in the process, clarify our thinking. There is
something about claims that irritate some government folks, and
I'd like to know what it is and why it does.
I was a contracting officer for the Air Force and for the
Department of Energy, but I never thought of claims as a bad
thing; they were just a normal part of contractual relations. I
thought that they were kind of fun. Yet I know that many, if not
most, do not share that view. And I am especially interested in
the idea that requests for equitable adjustment (REAs) are okay,
but that claims reflect some kind of deterioration in the
relationship.
I think that we should explore that thinking and also try to
establish some general criteria for what constitutes abuse of
the disputes process.
Vern
By joel hoffman on Wednesday,
May 01, 2002 - 09:21 pm:
This is from the FRIED FRANK
GOVERNMENT CONTRACTS ALERT (TM) page at http://www.ffhsj.com/govtcon/govtcon.htm
"NEWS BRIEF NO. 02-4-4: OFPP ISSUES MEMORANDUM PROHIBITING
CONSIDERATION OF PAST CLAIMS AND PROTEST HISTORY IN PAST
PERFORMANCE EVALUATIONS OR SOURCE SELECTION DECISIONS
On April 1, 2002, the Office of Federal Procurement Policy (OFPP)
issued a memorandum emphasizing that federal agencies should not
consider an offeror's past protests, claims, or Alternative
Dispute Resolution (ADR) participation in connection with either
past performance evaluations or source selection decisions.
Specifically, the memorandum indicates that contractors should
not be "downgraded" for having filed protests or claims, or for
refusing to participate in ADR: nor should contractors receive a
more "positive" evaluation for having refrained from filing
protests or claims, or for having agreed in the past to use ADR.
This memorandum reemphasizes policy set forth in the OFPP's May
2000 "Best Practices" Guide, in which OFPP stated that a
contractor's claims history should not be used as a basis to
downgrade the contractor's past performance rating. OFPP's
memorandum likely will affect the past performance procedures of
a number of agencies, including the U.S. Air Force, that have
promoted the use of ADR as a past performance rating factor. See
News Brief See News Brief 01-9-4." happy sails! joel
By sineq on Thursday, May 02,
2002 - 11:38 am:
In the Fried Frank News Brief 01-9-4 it indicates that the AF
was, in an effort to encourage same, going to favorably score
contractors who elected to use ADR as opposed to other
procedures . Now, assuming there were no other intervening
events, such as a Court ruling, GAO decision etc., it seems to
me that the OFPP memo should have limited itself to the
direction that no additional "points" shall be given or taken
from a contractors appraisal based solely on the methods he
elected to deal with contract claims. (In the brief there is no
mention of protests ) Now if the memo had limited itself to the
above I doubt anyone would find it objectionable. However the
memo is not that focused and is ,in my opinion, so overreaching
as to preclude agencies from properly evaluating a contractor.
By Vern Edwards on Thursday,
May 02, 2002 - 11:48 am:
Also, while it's not fair to give a contractor an unfavorable
assessment for refusing to agree to ADR, why not give a
contractor a favorable assessment for proposing or agreeing to
ADR in lieu of appeal to a board or court? After all, ADR is
presumed to be "relatively inexpensive and expeditous." See FAR
§ 33.214(a).
By Kennedy How on Thursday, May
02, 2002 - 11:58 am:
Vern,
Well, having worked 3 claims on one contract (settled two and
won the biggest one), when I say I don't like them, I speak
mainly of the time it takes to properly work them. That time is
better spent doing other things, because it seems that we have
to drop everything and work the issues as they come up (Rule 4,
TALF, Interrogatories, Discovery, etc.).
Second, I base my comments on the fact that the contractor is
not abusing the system, and has bona-fide reasons for pursuing
his course of action. If he is abusing the system, then I would
probably have a different outlook, but for the sake of this
discussion, a contractor coming in with an REA should be
evaluated on it's merits, and probably should not be categorized
as a combative action.
OK, presuming we do not agree with the contractor's position, he
is well within his rights to submit a claim; as we are now in a
dispute. If we do agree with his position, then we should
acquiese to the REA, and it never SHOULD get to the claim.
In my experience with the bulldozer contract, I withheld
judgement of the merits of an REA or whatever, because I was not
technically qualified to assess it. I had COTRs, legal, and
others to advise on the positions. At that time, my feeling was
that if you are really really sure of your position that we
should deny it, you should also be in the position to tell it to
the ASBCA and be prepared to win. Because the contractor will be
within his rights to pursue it to that venue. To me, a gray area
is a crapshoot, the board will rule under the "ambiguity goes
against the drafter (us)". It's a losing proposition, so why
bother and waste all of our time? This was a big worry on our
big claim, the contractor was alleging an ambiguity. But, the
record of events (fortunately) didn't hurt us, under their way
of thinking, we were still OK, so we won.
I should also clarify that I don't like getting a claim in cold;
I don't like disputes, but I believe we should work things out
amicably via REA or ADR first. I think a claim is a last-resort
sort of thing, but I also understand that a contractor may feel
he's well within his rights to submit one cold. That's fine, but
when you have a dispute with your car dealership, you don't sue
him first. You go in to try and settle, and if you aren't
satisfied, then you sue him. But, you should at least try to
come to an agreement/settlement first before going all the way.
Finally, as far as an unhappy state of events, by that I mean
that if you have a lot of REAs and Claims, there has to be an
underlying reason for it. Other than the contractor abusing the
process, there is something going on that allows the contractor
to believe that he has the ability to prevail. If he does
prevail the majority of the time, why are you leaving that door
open to him? And, if there are that many holes to allow him to
continually submit a valid claim, why are you leaving that door
open? I just don't understand why somebody would let themselves
be subject to this. Again, I'm speaking from the valid
circumstances standpoint.
Does this help?
Kennedy
By sdineq on Thursday, May 02, 2002 - 12:48 pm:
vern 11;48
Wouldn't that raise the same
issue as originally objected to?
By Vern Edwards on Thursday,
May 02, 2002 - 01:35 pm:
Kennedy:
It does help.
First, I think that you and I are using the word claim a little
differently. To me, the submission of a claim does not
necessarily mean that the parties disagree or are in dispute. I
don't think of a claim as a last resort. But I see now that you
think of a claim as a declaration that the parties can't settle
and are in dispute, and as something that going to end up before
a board or court, even though the U.S. Court of Appeals for the
Federal Circuit has held that the a claim need not be about a
matter in dispute. See: Reflectone v. Dalton, 60 F.3d 1572
(1995). (A note to all readers of Cibinic and Nash: the 3d
edition of Administration of Government Contracts, which says on
page 1260 that there must be a dispute before there can be a
claim, was written before the Reflectone decision.)
So to me, claim and dispute are two different things--not all
claims reflect or end up in a dispute and not all disputes lead
to an appeal. But if you think of claims, disputes, and appeals
as being part and parcel of one another, then I understand why
you feel the way you do.
Second, an interesting notion that you mention and that has been
mentioned by others (including me) in this thread is the notion
of "abuse" of the disputes process. While I understand the
general sense of that notion, I'm struggling to come up with
criteria for what kinds of behavior would constitute such abuse.
Clearly, fraudulent claims are abusive. But is it abusive if a
small business, which does not understand the proper
interpretation of the FAR clauses or the complexity of
government contracting, files a number of groundless claims
because it simply doesn't understand what constitutes a
constructive change, or a cardinal change, or the proper measure
of an equitable adjustment, or the subtleties of the Christian
Doctrine, or the intricacies of cost allowability?
And while it may be that the deliberate search for and
exploitation of contract loopholes is an abuse, such conduct
might be defensible on the ground that the government brings
such behavior on itself by limiting the opportunities for full
and frank identification, discussion, and resolution of
performance issues prior to award.
Vern
By Anonymous on Thursday, May
02, 2002 - 02:18 pm:
ok.. a business files a number of groundless claims because it
lacks an understanding of Federal contract clauses,
procedures...whatever. Now as I am evaluating his performance I
am precluded from making a notation that the contractor lacks an
understanding of Federal contract clauses or procedures which
resulted in a large number of groundless claims, all of which I
had to spend an inordinate amount of time addressing. It is
issues such as this that I find difficult to accept as either
fair to the government or the next KO.
By Vern Edwards on Thursday,
May 02, 2002 - 02:29 pm:
Anonymous:
The OFPP memo does not prohibit you from documenting an
offeror's ignorance of government contracting rules and
procedures and ignorance of the terms of its contract, and the
effect of that ignorance on contract performance and contract
administration.
By anon218 on Thursday, May 02,
2002 - 02:42 pm:
Alright, let me ask this question...is the OFPP memo addressing
information that arises after a past performance report is
written... ie anecdotal commentary developed during the source
selection process ?
By webmaster on Thursday, May 02, 2002 - 07:31 pm:
Please continue discussion on part 2 of this thread.
By anon2 on Sunday, May 05, 2002 - 07:46 am:
Vern,
I am sorry I did not get back to your response on my message. I
am in the Contracting Office and work for the CO that revised
the scoring on a past performance evaluation. The Contractor
confirmed his intent not to furnish the required support by
letter to the Contracting Officer.
I support the Program Office for having rated the incumbent as
unsatisfactory. Perhaps it should have been a Termination for
Default or the CO should have let the rating stand. The letter
from the contractor confirmed that he intended not to perform.
I am in the process of re-soliciting this requirement and will
be left in a predictament when it comes to past performance. The
contractor is unsatisfactory in his support, but the latest
evaluation on record reflects a satisfactory record of
performance.
Anon2
By anon2 on Sunday, May 05, 2002 - 07:50 am:
Vern,
I guess I should add to "The contractor confirmed his intent not
to perform..." by adding that the contractor confirmed his
intent not to perform by moving his support staff from the local
area
By anon2 on Sunday, May 05,
2002 - 07:46 am:
Vern,
I am sorry I did not get back to your response on my message. I
am in the Contracting Office and work for the CO that revised
the scoring on a past performance evaluation. The Contractor
confirmed his intent not to furnish the required support by
letter to the Contracting Officer.
I support the Program Office for having rated the incumbent as
unsatisfactory. Perhaps it should have been a Termination for
Default or the CO should have let the rating stand. The letter
from the contractor confirmed that he intended not to perform.
I am in the process of re-soliciting this requirement and will
be left in a predictament when it comes to past performance. The
contractor is unsatisfactory in his support, but the latest
evaluation on record reflects a satisfactory record of
performance.
Anon2
By anon2 on Sunday, May 05,
2002 - 07:50 am:
Vern,
I guess I should add to "The contractor confirmed his intent not
to perform..." by adding that the contractor confirmed his
intent not to perform by moving his support staff from the local
area
By joel hoffman on Monday, May
06, 2002 - 07:10 am:
Anon2, for the re-solicitation, you don't have to limit yourself
to reviewing evaluations. You should state in the evaluation
criteria that you may also use information other than evaluation
reports, including documented current performance on contracts.
Secondly, I'm not sure whether your regulations allow for
interim evaluations, where performance is unsatisfactory. If
they do, as in construction, the office should begin the due
process of informing the Contractor that its performance is
unsatisfactory (assuming that it is), and that, unless
performance is improved, within XX days, the KO will issue an
interim unsatisfactory evaluation. Recommend consulting your
attorney. Of course, you may already know the procedures.
Of course, if the contractor is in default, you need to consult
your attorney, regarding starting the process of notice and
termination. happy sails! joel hoffman
By Anonymous on Monday, May 06,
2002 - 10:21 am:
GAO B 282947 appears to be on
point but the OFPP does not,in my opinion, say quite the same
thing.
By Vern Edwards on Monday, May
06, 2002 - 11:19 am:
Anonymous of May 6 at 10:21am is referring to the GAO's decision
in the matter of Nova Group, Inc., B-282947, September 15, 1999.
The GAO sustained the protest, which was against a Navy source
selection decision. The case shows why OFPP issued the policy
letter. Here is an extended quote from the decision:
"Nova complains that the Navy improperly considered Nova's
contract claims as the basis for downgrading its rating. Nova
states that there was no basis to support this downgrade because
Nova has an above average record of contract performance and,
although it has used the contract dispute process, it has not
exhibited obstructive or disputatious conduct in the process.
Protest at 21; Comments at 26-27; Supplemental Comments at
18-20.
Absent some evidence of abuse of the contract disputes process,
contracting agencies should not lower an offeror's past
performance evaluation based solely on its having filed claims.
AmClyde Engineered Prods. Co., Inc., B-282271, B-82271.2, June
21, 1999, 99-2 CPD para. 5 at 6 n.5. Contract claims, like bid
protests, constitute remedies established by statute and
regulation, and firms should not be prejudiced in competing for
other contracts because of their reasonable pursuit of such
remedies in the past. Id.; See Contract Disputes Act, 41 U.S.C.
sect. 601-13 (1994).
Here, Nova's performance under past contracts for similar work
received ratings from the respective contracting agencies of
average to outstanding. Agency Report, encl. 9, at 4. The record
shows that the sole basis for Nova's satisfactory rating under
the experience/past performance factor was due to nine claims
that were evaluated as actions in which Nova and the contracting
agency "could not reach bilateral agreement," and that Nova's
proposal would otherwise have likely received an outstanding
rating under this factor. [6] Id.; Agency Report, encl. 17, at
3. The final SSB report stated the following:
[Nova]'s rating of satisfactory was based on [Nova]'s
identification of nine claims since claims was considered a
weakness in terms of customer satisfaction (e.g., effectiveness
of management, reasonableness of price
cooperation/responsiveness).
Agency Report, encl. 17, at 3.
There is no evidence in the record that Nova's contract claims
lacked merit or that they had an adverse impact on contract
performance. As the TEB stated, some of Nova's claims involved
contracts for which Nova received outstanding performance
evaluations. Agency Report, encl. 9, at 4. Nova's revised
proposal stated Nova's basis for pursuing each of the disputed
claims, and the record shows that the overall disposition of
these disputes was in Nova's favor. Agency Report, encl. 7,
Nova's Letter to the Navy 9-13 (Apr. 14, 1999). In this regard,
Nova claimed compensation for post-award contract changes
totaling more than $11 million. Of the nine claims, eight were
resolved with the contracting agency agreeing to pay more than
$8 million (the final claim for nearly $2 million is pending).
In addition to this record of resolution favorable to Nova, the
number of claims does not appear extraordinary for a period
covering 15 years. The record lacks even a scintilla of evidence
suggesting that Nova's participation in the contract dispute
process was frivolous or was intended by Nova to be obstructive.
The Navy does not allege that Nova's claims were indicative of
poor performance, nor that they were frivolous or filed in bad
faith. Rather, the Navy concludes that the failure to reach
bilateral agreement raised questions under the customer
satisfaction subfactors (quoted above) of the experience/past
performance factor concerning reasonableness of price,
effectiveness of management, and cooperation/responsiveness.
Agency Report, encl. 17, at 3. While it is true that these
disputes are instances where the parties failed to reach
agreement without recourse to the statutory claims resolution
process, the agency's resulting conclusions are not reasonable.
For example, since Nova's claims have largely been resolved with
Nova receiving most or all of the claimed amounts, this suggests
that it was ultimately found that the prices claimed were not
unreasonable. Also, since there is no evidence suggesting that
Nova failed to perform the contract changes effectively, delayed
contract performance, or failed to respond to or cooperate with
the agency in performing the contract changes, the record does
not evidence that these claims indicate problems in management
effectiveness, responsiveness or cooperation.
We find from this evaluation record that Nova was downgraded
simply because it has actively pursued claims through the
statutory contract claims resolution process on nine occasions
over 15 years."
In my opinion the agency's evaluation was unprofessional and
stupid, and this has happened often enough that OFPP felt that
it had to do something.
By Kennedy How on Monday, May
06, 2002 - 12:30 pm:
Vern,
Yes, you and I are looking at it differently. That may be due to
how I was "brought up" as a 1102. I don't ever recall being told
that a contractor would generate a claim if there wasn't some
kind of dispute.
I know differences in opinion are going to happen. I prefer
looking at them in a more informal manner, and try to work out
the differences. If that can't happen, for whatever reason, then
if it goes to a claim, that's also OK; that's their right to do
that. But, in my world, a claim is a last resort. The fact that
ADRs and other "less formal" methods of resolution are
encouraged sort of reinforces that meaning to me.
As far as "abuses" are concerned, you hit upon a definite
problem with defining that. However, using your example of an
inexperienced contractor, I would encourage that contractor to
approach the KO's office and discuss whatever problems the
contractor seems to be having. My personal philosophy is to help
the contractor as much as is practical, without overstepping the
bounds, to get him onto the right track. If the contractor is
completely clueless, I can't hold his hand, and the Government
may need to rethink doing business with the guy. Either way, I
doubt that filing claims is the way to go.
As far as the Nova Group decision goes, I think that
peripherally addressed my previous comment about not dinging a
contractor for outstanding claims, or claims that have not been
adjudicated yet. Even so, a loss on a claim may not hurt a
contractor unless the court rules that the claim was totally
frivolous.
Kennedy
By anon 10-16 on Monday, May
06, 2002 - 01:07 pm:
I thought the second paragraph of the digest of the GAO decision
in NOVA neatly summed matters up. >>(2) Protest is sustained
were agency improperly downgraded protestors past performance
based merely on pretestors history of contract claims ,with no
allegation that protestor abused the claims process". What I
like about this writing is that it makes sense ,seems reasonable
and allows for abuses to continue to be dealt with and remain
reportable. With apologies to all I am not assured that the OFPP
memo says the same thing .
By Anon2U on Monday, May 06,
2002 - 10:46 pm:
I have been in contracting for 4 years and have always heard
Requests for Equitable Adjustment (REA)called by the generic
name "claim". Probably one more case of poor terminology caused
by more inexperienced personnel in the office than experienced.
However, using the term improperly, there could be alot of
proper "claims".
By joel hoffman on Tuesday, May
07, 2002 - 07:40 am:
a "claim" is really more than a request for equitable
adjustment. Although the subject of a claim does not have to be
in dispute, it involves a non-routine matter of contract
administration, and the Contractor must request a KO's decision.
Those are the primary differences between an REA and a claim.
There are also certain certification requirements, depending
upon the amount of the claim (or REA, if the contract is with
the DOD). Once submitted, the claim triggers all the provisions
of the "Disputes Clause", with the rights and responsibilities
of each party. happy sails! joel
By anon2 on Tuesday, May 07,
2002 - 09:11 am:
Joel,
In response to your comments, your are right we have reserved
the right to look at other data and not just the evaluation. We
furnished past performance questionaires/surveys - but I think
we did something I would do differently-- we have the potential
offerors collecting the data and submitting it as a part of
their proposal. I think we should have them coming directly to
us.
I am not the CO on the Contract. I would have followed the
process in FAR Part 49 with respect to the required "Cure" "Show
Casuse and T for D requirements. I have been involved in T4D and
T4C at other agencies. AS far as legal support- we get very
little of that here at this agency with respect to contracting -
unless there is a protest then most of the time it's too late.
The CO says there are extenuating circumstances - but I don't
see where these would hold precedence over the contractor's
written notice that he does not intend to perform certain
services any longer.
By Vern Edwards on Tuesday, May
07, 2002 - 10:26 am:
Joel:
I need to elaborate on a something that you said this morning.
A contractor who submits a claim does not necessarily have to
explicitly request a contracting officer's decision. See
Administration of Government Contracts, 3d ed., pp. 1,267 -
1,269 and Contract Disputes Act: Annotated, by Peacock and Ting
(Federal Publications, Inc., 1998), pp. 4-6 thru 4-9. Mr.
Peacock is an attorney and was an Air Force JAG and an
administrative judge on the Corps of Engineers Board of Contract
Appeals. Mr. Ting is also an attorney and was a judge on the
ASBCA and Chief Counsel for Appeals for GSA.
In Contract Disputes Act: Annotated, the authors say:
"To qualify as a 'claim' there must be some manifestation in the
writing(s) of 'a present, positive intention to seek an
equitable, monetary or other adjustment of the contract terms,
as a matter of right'... . However, the contractor need not
formally demand or request expressly that the CO issue a
decision. An implicit but clear indication from that contractor
that it desires a decision will suffice. Nevertheless, the
absence of a specific request for a decision may be a factor for
consideration in determining whether the claim criteria have
been satisfied. Thus, it is preferable for the claim expressly
to request issuance of a final decision."
Thus, a request for money or other relief may be a claim even
though the contractor does not include a sentence that says: "We
request a final decision of the contracting officer in this
matter."
Whether or not a claim is a non-routine matter of contract
administration depends on who you are and what kinds of
contracts you administer. When I was an Air Force contracting
officer in weapon system program offices, claims would have been
non-routine. But when I was in the Department of Energy working
construction programs, claims were pretty routine. In fact, I
probably spend at least 30 percent of my time working on claims
in some way or another.
By joel hoffman on Tuesday, May
07, 2002 - 12:41 pm:
Vern,
What I meant by non-routine matters were things, such as
"ordinary invoices" (e.g., routine progress payment invoices
aren't considered "claims"). I'd have to research further, but I
think that a proposal, in response to a routine request for a
change proposal, is not considered a claim. I'd also have to
research further, regarding a proposal submitted in response to
a letter contract RFP or a proposal in response to a change
order with RFP. The Contractor can claim costs for preparation
of the proposal, under certain circumstances. I didn't intend to
elaborate, and you are correct, agencies have different
perspectives.
I agree with the statement "An implicit but clear indication
from that contractor that it desires a decision will suffice." I
probably should have clarified that, but didn't intend to
describe every point concerning requests for KO desisions. The
point is that it is a request for a KO decision if it can be
clearly deduced by the Government that the Contractor expects
the KO to make a decision on the merits of the issue. From my
perspective, our contractors routinely communicate directly with
people who clearly have no authority to render KO decisions or
no authority under the Disputes Clause (ACO's, COR's, COTR's, QA
reps, etc.
From what I've read, to be considered a claim, it should be
intuitively obvious, even if the Contractor doesn't specifically
state "I want a Contracting Officer's decision", that one is
expected. There are degrees of difference. If the Contractor is
strictly communicating its initial interpretation of a contract
provision with the ACO, COR or QA rep or COTR, that doesn't
always manifest clear intent that the Contractor expects the KO
to decide the matter. The KO would be flooded with "claims" on
most of our construction contracts, if the parties' initial
position on innumerable day to day activities and
interpretations, communicated to the field office were
considered to be "claims". Most get worked out at the field
office level. That's one reason we have ACO's in the field
offices. We ask that the Contractor deal directly with the ACO,
until it is necessary to elevate a matter, which is always their
right. I suppose, from another agency's perspective, the KO may
be the party routinely directly communicating with the
Contractor. Our KO's sometimes have 100-200 active contracts
open and can't decide every routine matter surrounding contract
administration. happy sails! joel
By Vern Edwards on Tuesday, May
07, 2002 - 01:31 pm:
Joel:
I agree that a proposal in response to a "routine request for a
change proposal" is not a claim. By "request for a change
proposal" I assume that you mean a request made in anticipation
of the issuance of a change order. I also agree that a proposal
in response to an RFP for a letter contract is not a claim.
Neither could be a claim, because neither would be a demand for
money or other relief as a matter or right.
I believe that the following language meets all of the tests for
a claim:
"Pursuant to the Changes clause of our contract, XYZ Corp.
requests that the contracting officer equitably adjust the
contract price by increasing it in the amount of $50,000, from $
2,500,000 to $2,550,000. XYZ Corp. asserts that it is entitled
to this adjustment due to the increase in the cost of the
performance of the work that was caused by Change Order no.
P0004, issued on May 4, 2002. XYZ Corp. respectfully requests
that the contracting officer modify the contract to make this
equitable adjustment within 60 days from the date that she
receives this letter. Supporting documentation is attached."
The letter never mentions the words claim, dispute, disputes
clause, decision, or final decision. It is not hostile or
in-your-face, and it does not indicate that there is any
disagreement between the parties. I think it is very
businesslike. Yet the interest clock is ticking.
By joel hoffman on Tuesday, May
07, 2002 - 01:36 pm:
Yep, I would agree with you. happy sails! joel
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