Definitions, late progress payments, and disputes clause

[LucyQ]

Progress payments clause 52.232-16 says, "payment office will make progress payments". There are exceptions when progress payments arent due but none of them are relevant in my case.

If the government hasn't issued a progress payment after it's due date for reasons not valid under the clause, what would be the recourse? I know progress payments are finance payments which don't get interest but what does "will" mean in this case? If they don't perform as directed in FAR do we then go to the disputes clause?

My personal opinion is that yes, we would go to the disputes clause because 52.232-16 is in our contract so we have, "as a matter of right" a claim to payment which has not been met.... but I've never seen this before so that's just my personal opinion.

Any thoughts?

[Guest Vern Edwards]

FAR does not define "will." It's meaning in any case depends on context. See "Words of Authority" in Garner's Dictionary of Legal Usage, 3d ed (2011). "Will" might express the imperative, but is often used to express a future contingency or intention (something is expected to happen, but it might not).

Progress payments under FAR 52.232-16 are conditional, not mandatory. See Defense Systems Co., Inc., 002 BCA ¶ 30991, ASBCA 50918, June 20, 2000; Florida Engineered Construction Products Corp. v U.S., 41 Fed. Cl. 534 (1998). The current edition of the clause says that the government "will" make payments "under the following conditions...."

A request for a progress payment is a routine request for payment. See the third sentence in the definition of "claim" in FAR 2.101 and in the Disputes clause, FAR 52.233-1. See also Environmental Safety Consultants, Inc., 13 BCA ¶ 35329, ASBCA 58221, June 6, 2013.

If the government does not make a progress payment in accordance with the terms of the clause, you may convert the routine request into a claim by resubmitting it in accordance with FAR 33.206 and 33.207. The CO must then settle it or issue a final decision in accordance with FAR 33.211. If the CO issues a final decision, you may appeal to a board of contract appeals or the Court of Federal Claims. See FAR 33.211(a).