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Can a KTR appeal before the BOARD the KO’s failure to honor his final decision


Rodolfo

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BACKGROUND:

On late April 2012, a KTR requested that the KO issued a final decision regarding his claim for additional work and the remission of the liquidated damages that the agency intended to assess.

In spite of the KTR’s repeated written requests, the KO failed to issue a decision with a reasonable time (more than 8 months). The KTR then filed a notice of appeal to the ASBCA citing the KO failure to issue a decision.

By action of the board, on late January 2013 the KO issued the final decision.

With the final decision the KO denied the remission of liquidated damages; however approved the KTR claim in whole.

The KTR appealed before the ASBCA the KO’s final decision to assess liquidated damages. As of today, the Board has not taken a decision yet.

On late May 2013, the agency e-mailed to the KTR a bilateral modification with the request to return it signed. Block 13c of the modification cited FAR clause 52.233-1 Disputes.

The modifications reads as follows [VERBATIM]: “The purpose of this modification is to settle Contractor's claim as per Contracting Officer's Final Decision dated 22 January 2013 regarding additional costs for purchase and installation of the heat recovery units, repair of the HVAC system in building XXX, and reconsideration of the assessment of liquidated damages under Contract no. XXXXXXXXXXXXX

It should be noted that the contract price shown in the modification (i.e., from) had already been deducted of the amount of liquidated damages and that, included in the supplemental agreement, there was a release (disclaimer) which said [VERBATIM]: ....”the Contractor hereby fully releases the Government its officers, agents and employees of and from all liabilities, obligations, claims, appeals and demands, which it now has or may hereafter have arising under or in any way related to this contract”.

The KTR kowns that is customary for the government to include release languages in contract modifications (see FAR 43.204 (e)) to avoid subsequent controversies that may result from a supplemental agreement containing an equitable adjustment. However, he does not agree to sign a supplemental agreement that:

1. Makes reference to the liquidated damages that are in dispute.

2. De facto deducts the amount of the disputed liquidated damages from the contract price.

The contractor holds that:

1. The language of the modification and of the disclaimer will bar him from pursuing his appeal.

2. The government’s assessment of liquidated damages and his claim are two separate issues; thus, they should not be incorporated into the same modification.

3. The supplemental agreement contains a Contractor's Statement of Release that makes reference to “appeals”.

5. By signing the supplemental agreement as written, de facto he would accept the assessment of liquidated damages.

The KTR’s concerns were brought to the attention of the KO but, as of today, nothing has happened.

QUESTION: Can the KTR appeal before the BOARD the KO’s failure to honor what he has established to accomplish with his final decision (i.e., pay the KTR’s additional work)?

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It would appear from your description that the dispute concerns the assessment of liquidated damages and that this has already been filed as an appeal to the ASBCA. The Mod appears to offset the additional work/costs against the assessed LD's per the KO decision that you appealed. The Mod therefore seems to be part of the original claim.

Why hasn't the BCA addressed the initial appeal?

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Good morning and thank you.


"It would appear from your description that the dispute concerns the assessment of liquidated damages and that this has already been filed as an appeal to the ASBCA". This is correct. :)


"Why hasn't the BCA addressed the initial appeal?" First the Government requested an extension to prepare the rule4. Then, Government moved to dismiss the KTR appeal on the ground that it was not timely filed. KTR presented his arguments and is waiting for Board’s decision.



"The Mod appears to offset the additional work/costs against the assessed LD's per the KO decision that you appealed". The mod is tricky. The project was completed and accepted on 30 Jan 2012 and the GOVT has withheld from the final invoice the amount due for the liquidated damages. If the intent of the mod was ONLY to settle the KTR's claim as per Contracting Officer's Final Decision dated 22 January 2013, the KTR would not have problem to sign it but it makes also reference to the liquidated damages which are in dispute. KTR is afraid that if he signs the mod as it is, the appeal will be dismissed.


KTR maintains that the GOVT should issue two mods:


A Bilateral agreement for the additional work with proper statement release.

An unilateral mod for the assessment of the liquidated damages awaiting for the BOARD decision.


Instead, if the KTR wants the money for the additional work performed he must agree to sign a mod that makes reference to the liquidated damages.


KTR would like to submit a separate appeal to have the KO to pay him for the work already performed.


His question is: can I appeal before the BOARD because the KO does not want to pay me in accordance with his final decision unless I accept to sign the mod with the assessment of liquidated damages?


Thank you again for your assistance
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Rudy, you need the advice of counsel. I guess that you are an Italian contractor which may complicate access to lawyers familiar with US federal contract law. My guess is that the government isn't going to pay anything that would release the funds being assessed for LD's . It would also appear that the government owes you interest on the payment for the additional work that you you claimed, until paid.

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