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Michael11

Government won’t pay our (final) invoice

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FFP agreement. There was some initial disagreement over whether all requirements of the contract had been met. Government and contractor deliberated and contractor offered reasonable accommodations to complete scope to the government’s liking all the while contractor maintained work, as written in the contract, was completed. Contractor patiently waited following submission of final invoice. Despite multiple pleas from contractor to COR for technical clarification if it was needed and emails from company leadership over several months to the CO it has been pure radio silence from the govt. Invoice is approaching one year old, staff has now turned over, and still nothing. Invoice was never formally rejected. 

What is a reasonable course of action at this point? Emails are not returned phone calls are not answered. Emails have been sent that tee up the situation to the government still nothing.

Would is be reasonable to say one last time the situation, give the govt a 30-day deadline and then they will receive notice from an attorney? 

I cant say I’ve ever seen a situation quite like this and the more time that passes the less likely I see the contractors chances of collecting payment due without outside counsel or something of the like?

Any ideas?

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If you believe you are entitled to payment, you should file a claim under the Disputes clause of the contract.  Make it a real claim (demand for payment, sum certain, and so forth), don't be wishy-washy.  That will force the contracting officer to issue a final decision in the matter.  You don't need outside counsel to file a claim -- just read and follow the Disputes clause, don't be wishy-washy.  If you don't like the final decision, or if you don't get one, you can appeal to a board of contract appeals. 

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You said earlier that e-mails and phone calls are not returned, over a period of several months or a year.

I don't see a claim as adversarial -- you can be wholly courteous and professional about it.  Read the Disputes clause and see if it fits your circumstance -- if it does, follow it.  A claim is filed with the contracting officer, not his or her supervisory chain and not to an outside body.  It will be a private matter between you and him/her, unless he/she decides to tell others.

Or, you can continue to be wishy-washy, but it likely will avail you nothing.  If so, you might say something like, "This is our last request.  Our next action, seven days from today's date, will be a claim under the Disputes clause of the contract."

It's up to you to decide if you really want the money you believe is owed to you.  Of course, if your agency is one of those in shut-down because of the failure of the Congress to pass an appropriation bill for the President's consideration, you might be out of luck for a while.

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Are you located near the contracting office or the COR office to make direct eye to eye contact?  The personnel you were dealing with might no longer be employed there. 

 

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Michael:

You wrote.

Quote

FFP agreement. 

You said agreement.  I assume it is a contract.  We assume your contract has a disputes clause as mentioned by others.  If you cannot find one in your contract, let the posters know.  That clause, backed by federal law, tells you what to do and what the contracting officer must do. You will note that there are dollar thresholds and time limits in the clause.  You believe you did the work, your have a right to be paid for it.

As ji said, follow the directions in your contract's clause.  Forget the one last chance, force the government to do something by enforcing your rights under the clause.

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If you believe that you have a legitimate right to payment and have made repeated efforts to request payment, then I would suggest submitting a claim.

If you are nearby the KO office, perhaps you may first demand a face to face meeting for them to explain to you why they won’t pay you. Demand specific reason and details. 

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Thanks for all of the great feedback. To clarify yes this is a contract. I will research the dispute clauses included in the contract and hopefully there is reprieve.

Ji thanks for your opinion that a claim may not be adversarial. I’m sure that is what folks who are tasked with the client relations will want to hear if we decide to move forward with it. I hope we will.

Joel I’m with you that a face to face would be effective. I think essentially that same course of action was already taken months and months ago over the phone and obviously whatever the outcome was wasn’t convincing enough for the government. 

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I recall that a senior member of this discussion forum, who is sadly no longer active, once posted a blog piece about a very similar issue -- a contractor that was reluctant to file a claim for money it believed it was owed. If I recall correctly (and it's been a long time since I read that piece) the contractor waited so long to file that, when it finally did file the claim, the statute of limitations had passed and the appeal of the CO's denial was tossed.

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ji and Joel have given you sound advice.  One more thing you should include in your claim is a demand for payment of Prompt Payment Act interest running from the date you submitted your invoice until one year later.  You will be entitled to  CDA interest on the amount of your invoice and the PPA interest beginning with the date you file your claim until any amount found due on the claim is paid.

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A complete and valid claim under the contract's Disputes clause will provide one (or a combination) of following results:

  1. A final decision with an agreement and a payment (or a partial agreement and partial payment); or
  2. A final decision with a denial (or partial denial).

If you get 1., the matter is over and everyone is happy -- the contracting officer agreed with you.

If you get 2., you will be able to read the contracting officer's substantive reasoning for the denial -- maybe you will agree with him or her and can make whatever correction is needed -- but if you disagree with that reasoning, you may appeal the denial to a board of contract appeals.

If the contracting officer does not issue a final decision, that constitutes a "deemed denial" and you may appeal the deemed denial to a board of contract appeals.

A claim is the process agreed to by both parties for resolving disputes that might arise under the contract.  It can be an honorable process.  I don't know whether you are really entitled to payment, but you say you are.  Read the Disputes clause and see if it fits.

 

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That’s good foresight JI thanks. I can’t tell you for certain that we are entitled to payment. I’ve heard we are. And after all of the deliberations I have to trust the experts. I look forward to finding out once and for all

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22 hours ago, ji20874 said:

If you get 2., you will be able to read the contracting officer's substantive reasoning for the denial

That is if the contracting officer is competent and knows how to write a final decision.  However, that is not always the case and the final decision may be essentially nothing more than a statement that I have read your claim and deny it.

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5 hours ago, Retreadfed said:

That is if the contracting officer is competent and knows how to write a final decision.  However, that is not always the case and the final decision may be essentially nothing more than a statement that I have read your claim and deny it.

That's still progress -- the denial can be appealed to a board of contract appeals.  The absence of any substantive reasoning will work in the contractor's favor in the appeal.

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File a claim under the Contract Disputes Act, as everyone else said.

Let this be a lesson to other frogs. Filing a claim under the Contract Disputes Act requires government action. Most other things you might try do not, such as filing a request for equitable adjustment, phone calls, emails, etc.

Don't get pushed around!

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