Performance of Government Contracts

I. II.

Contract Administration and Personnel Contract Interpretation

A.

Basic Objective of Interpretation

Determine the intent of the parties Uncommunicated intentions are not relevant to the interpretation process Interpreted as a reasonably intelligent person familiar with the facts and circumstances

B.

Definition of Terms
Three sources: o Definitions incorporated into the contract documents o Dictionaries o Common usage 1. 2. Definitions in the Document Mere inclusion of a definition does not solve all problems. The words in the definition must also be defined. Dictionary or Common Usage Definitions a) b) c) 3. Dictionary Definitions Courts/boards do use dictionaries to define words but they will be rejected if they are not useful or there is better evidence to define the meaning of a term Common Usage Courts/boards can determine a meaning based on their own understanding Limitation on the Dictionary and Common Usage Definitions Neither dictionary nor common usage definitions should be used when the contract terms indicate that another meaning is intended.

Technical Terms When words have a clear or well defined special meaning in the trade or industry involved in the contract, the courts will defer to that technical meaning a) Trade Usage Technical terms and words of art are given their technical meaning when used in a transaction within their technical field

Page 1 of 33

Performance of Government Contracts

b) Government Forms and Regulations Special terms in government contracts are given their special meaning FAR definitions have been used in the contract interpretation process

C.

Analysis of Language of Contract Documents

1. 2. Plain Meaning The paramount means of interpreting a contract is to look for the plain meaning when the terms of the contract are clear Read the Writings as a while a) b) c) 3. Interpret and avoid rendering worlds meaningless An interpretation will be rejected if it leaves parts of the contract language meaningless, useless, ineffective, or superfluous Interpret to avoid conflict When the document is read as a whole, the provisions should be interpreted to be in harmony with each other Interpret to Fulfill principle purpose of the parties Gaps or omissions may be resolved by interpreting as a whole in conjunction with giving great weight to the principal purpose of the parties.

Order of Precedence a) b) Order of Precedence Clauses Common Law Order of Precedence Rules

4.

Enumerated Items

D.

Extrinsic Evidence
Facts and circumstances surrounding the formation and performance of the contract are used to determine the intent of the parties.

Page 2 of 33

Performance of Government Contracts

1. Discussions and Concurrent Actions a) b) c) d) e) f) Requests for Clarification Pre-Bid and Pre-Proposal Conferences Pre-dispute interpretations Pre-dispute Action Evidencing Interpretation Pre-dispute Interpretations Made Know to the Other Party Limitations on the Use of Discussions and Concurrent Actions (1) (2) (3) Authority Post-dispute Conduct and Discussions Excluded Parol Evidence Rule (a) (b) (c) 2. Integrated Agreements Complete or Partial Integration Contradiction vs. Resolution of Ambiguities

Prior Course of Dealing a) Interpretation (1) (2) b) Actual Knowledge Required Application to Changed law

Custom and Trade usage (1) (2) (3) (4) (5) Interpreting Vague Language Ambiguous Language Not Required Clear Language Superior to Trade Claim Proof of trade practice Supplying Missing Terms

3.

Post-Interpretation Ambiguities a) Finding Ambiguous terms Page 3 of 33

Performance of Government Contracts

b) Interpretation Against the Draftor (1) (2) (3) c) Reasonable interpretation Identifiable Drafter Reliance

Duty to Seek clarification (1) (2) (3) Finding Ambiguous words Government Obligation to Inform Bidders of Ambiguity Failure to Respond to Inquiry

III.

Risk Allocation
A. Government Promises (Warranties) of Future Events or Conditions
1. Availability of Work Site Very difficult for a contractor to prove that a work site will be available at a given date because the governments ability to furnish the site is commonly recognized as being subject to numerous variables Finding a warranty of site availability is highly unlikely o Importance of the site must be an important factor as well as the critical nature of the limited period for performing the work. o More prone to finding the warranty if the contract contains a Suspension of Work clause Means of Access to Site There is a warranty when the contract says that a specific access route will be available during performance

2.

Page 4 of 33

Performance of Government Contracts

3. 4. Availability of Utilities Issuance of Notice to Proceed

B.

Incorrect Statements and Nondisclosures

1. Incorrect Statements a) b) c) 2. Factual Statements Laws and Regulations Estimates

Nondisclosures a) Government Knowledge of Vital Information (1) (2) b) Vital Information Government Knowledge

Contractor Knowledge or Reason to Know (1) (2) Actual Knowledge Reason to Know

c)

Government Knowledge or Reason to Know of Contractor Ignorance

C.

Implied Warranty of Specifications

1. 2. Basis of Government Responsibility Scope of the Warranty a) Type of Specification Language (1) (2) b) c) d) 3. Design Specifications Performance Specifications

Specified Alternatives Commercial Availability Degree of Accuracy Required

Causation and Reliance Page 5 of 33

Performance of Government Contracts

a) Contract Formation (1) (2) b) Actual Knowledge Reason to Know

Performance (1) (2) (3) Actual Use Use with Knowledge of Defects Cause of Problem

D.

Implied Duty of Good Faith and Fair Dealing

1. Breach by the Government a) Duty to Cooperate and Not Hinder Performance (1) (2) (3) b) c) d) 2. Active Interference Lack of Cooperation Abuse of Discretion

Improper Contract Administration Lack of Good Faith in Negotiating Modifications Lack of Good Faith in Changing Requirements

Breach by the Contractor a) b) Deliberate Inaction in Asserting a Claim Lack of Diligence

E.

Impracticability of Performance and Mistake

1. Impracticability a) b) c) 2. Competence of Contractor Unforeseen Technological Problems Incurrence of Increased Costs

Mistake Page 6 of 33

Performance of Government Contracts

a) Mutual Mistake (1) Mutual Mistake as to a Basic Assumption (a) (b) (c) (d) (2) b) Basic Assumption Mutuality Material Effect Assumption of Risk

Mutual Mistake in Integration

Unilateral Mistake (1) Type of Mistake (a) (b) (c) (2) Business Judgment Misreading Specifications Clerical or Arithmetical Errors

Knowledge of Error and Verification (a) (b) Knowledge or Reason to Know Adequacy of Verification Request

(3) (4)

Unconscionability Remedies (a) Reformation (i) (ii) (b) Mutual Mistake of Basic Assumption Unilateral Mistakes

Rescission

F.

Government Defenses
1. Disclaimer and Exculpatory Clauses a) b) Public Policy Interpretation Page 7 of 33

Performance of Government Contracts

c) d) e) f) Clear Disclaimers Misleading Statements and Nondisclosure Effect of Exculpatory/Disclaimer Clauses on Other Clauses Commonly Used Exculpatory/Disclaimer Clauses (1) (2) (3) (4) (5) (6) 2. Omissions and Misdescriptions Clause Production Drawing Changes Clause Preproduction Evaluation of Technical Data Clause Verification Clause Shop Drawings Clause Coordination Clause

Duty of Coordination a) b) Omission of Information Defective Drawings or Specifications

3.

Sovereign Acts Doctrine a) b) c) d) Public and General Acts Contractual Acts Implementation of Sovereign Act Impact of Contract Language

G.

Proportional Risk Allocation

1. 2. 3. 4. Joint Fault Joint Negligence Improper Default Termination Concurrent Delays

IV.

Changes
Page 8 of 33

Performance of Government Contracts

A. Purpose and Coverage of the Changes Clause
1. 2. Purposes Served Coverage a) Meaning of Within the General Scope (1) Disputes Between Contractor and Government (a) (b) (2) Nature of Work Cost and Disruption

Third Party Protests

B.

Formal Change Orders

1. 2. 3. Contractor-Originated Changes Government-Originated Changes Unilateral versus Bilateral Change Orders a) b) c) 4. Policy Modifying Language in Unilateral Change Orders Clause Permitting Only Bilateral Change Orders

Procedure for Ordering Changes a) b) c) Requirement for Written Change Order Standard Form 30 Obtaining Proposal for Downward Adjustment

C.

Constructive Changes
1. Basic Theory a) b) c) Continuing Vitality of the Doctrine Elements of the Doctrine Government Claims for Price Decreases

Page 9 of 33

Performance of Government Contracts

2. Types of Constructive Changes a) Defective Specifications and Misleading Information (1) (2) b) Defective Specifications Undisclosed or Incorrect Information

Acceleration (1) Elements of Constructive Acceleration (a) (b) Excusable Delay Knowledge of the Contracting Officer

c)

Hindrance or Failure to Cooperate (1) (2) Direct Order Actions and Inactions (a) (b) (c) (d) (e) (3) Overzealous Inspection Failure to Provide Assistance Inaction or Silence Unreasonable Conduct Other Actions

Abuse of Discretion

3.

Procedures for Resolving Constructive Changes a) The Contractors Obligations (1) (2) b) Loss of Control of Work Informing the Contracting Officer

Government Resolution of Problem

D.

Contractual Notice Requirements

1. Assertion of Right to Equitable Adjustment on Ordered Changes a) Contractor Claims Page 10 of 33

Performance of Government Contracts

b) 2. Government Claims

Constructive Changes Claims a) b) c) d) e) Applicability of 30-Day Notice Requirement Construction Contract Notice Requirement Notification of Changes Clause Accelerations Military Shipbuilding Contracts

V.

Pricing of Adjustments
A. Basic Principles
1. Price Adjustments Under Contract Clauses a) Basic Pricing Formula (1) Pricing the Deleted Work (a) (b) Deductive Changes Exceptions to General Rule (i) (ii) (iii) (iv) (v) (2) b) Compare Deletion of a Severable Item Ambiguous Specifications Special Contracting Agreements Deletion of Minor Items Waiver of Buy American Act

Pricing the Added Work

Cost Impact on Contractor (1) (2) (3) Incurrence of Costs Value Measures Allowable Costs

Page 11 of 33

Performance of Government Contracts

c) Subcontract Problems (1) (2) 2. Damages a) b) Similarity to Equitable Adjustment Methods of Computing Damages (1) (2) (3) c) Expectancy Damages Reliance Damages Restitutionary Damages Claims by Subcontractors in Contractors Name Lack of Equitable Adjustment Clause

Quantum Meruit (1) (2) Value Standard Value Measured by Contractors Costs

B.

Proof of Adjustment
1. Burden of Proof a) b) 2. Causation Reasonableness of Amount

Methods of Proof a) b) Actual Cost Data Estimates (1) (2) (3) c) Vague Estimates Expert Testimony Statistical Techniques

Total Cost Method (1) (2) Not Favored Safeguards for Use Page 12 of 33

Performance of Government Contracts

(a) (b) (c) (d) (3) 3. Other Methods of Proof Not Available Realistic Contract Price Reasonableness of Actual Costs Contractor Not Responsible for Increases

Modified Total Cost Method

Impact and Delay a) Theory of Recovery (1) (2) b) c) d) e) Delays Preceding a Change Delays Resulting from a Change or Differing Site Condition

Impact on Other Work Consequential Damages Unabsorbed Overhead Idle Labor and Equipment (1) (2) (3) Labor Contractor-Owned Equipment Rented Equipment

f) g) h) 4.

Loss of Efficiency Escalation of Labor Rates and Material Prices Miscellaneous Costs

Overhead and Profit a) b) Overhead Profit (1) (2) (3) Intermingled Changes and Suspensions Deductive Changes Breach of Contract Claims Page 13 of 33

Performance of Government Contracts

(4) (5) (6) 5. Amount of Profit Construction Contract Clauses Cost-Plus-Percentage-of-Cost Relationship

Costs of Financing Adjustments a) b) Interest on Claims Interest on Borrowings (1) (2) Recovery When Cost Principles Not Applicable Recovery When Cost Principles Applicable

VI.

Differing Site Conditions

A. General Rules Governing Application of the Clause
1. 2. 3. 4. 5. Condition must Predate the Contract Physical Conditions At the Site Differing Materially Burden of Proof

B.

Unique Aspects of the two Categories of Conditions

1. 2. Category I Conditions Category II Conditions a) b) c) Unknown Condition Unforeseeable Condition Unusual Condition

C.

Breach of Contract Claims Related to Differing Site Conditions

1. 2. Misrepresentation and Category I Conditions Government Nondisclosure and Category II Conditions

Page 14 of 33

Performance of Government Contracts

D. Notice
1. 2. 3. Nature of Notice Actual or Constructive Government Notice No Prejudice

E.

Procedure
1. 2. Contractors Duty to Proceed Governments Procedure

F.

Exculpatory Clauses
1. 2. 3. General Exculpatory Clauses Specific Exculpatory Clauses Relation to Representation

VII. Delays
A. Excusable Delays
1. General Requirements a) b) c) 2. Beyond the Control of the Contractor Without Contractors Fault or Negligence Foreseeability

Time Extensions a) b) c) Causation Concurrent Delays Delay of Overall Completion Required

B.

Compensable Delays
1. 2. No Applicable Clause Ordered Suspensions Page 15 of 33

Performance of Government Contracts

3. 4. Constructive Suspensions Reasonableness of Delays a) b) c) d) 5. Unreasonable Delays Reasonable Delays Measuring the Amount of Delay Burden of Proving Unreasonableness

Limitation on Recovery Concurrent Delays

VIII. Inspection, Acceptance, and Warranties

A. Inspection
1. Government Inspection a) Type of Inspection Test (1) (2) Contractually Specified Test Use of Unspecified Test (a) (b) (3) (4) (5) b) c) Increased Costs Notice

Subjective Standards Tests Imposing Higher Standards Inspection Standards Established by Conduct

Place of Inspection Time of Inspection (1) (2) (3) Inspection During the Work Acceptance Inspection Time of Inspection Affecting Validity

d)

Number of Inspections

Page 16 of 33

Performance of Government Contracts

e) f) Manner of Inspection Government Inspection Not for Contractor Benefit (1) (2) g) 2. No Waiver on Acceptance From Inspection Basis for Government Liability

Reinspection

Contractor Inspection a) General Inspection Clauses

3.

Cost of Inspection a) b) Contractor Duty to Facilitate Government Inspection Cost of Tearing Out Completed Work

4.

Special Inspection Techniques and Issues a) Inspection by Sampling (1) (2) b) c) Contractually Specified Sampling Sampling Not Specified

First Article Testing Safety Inspections (1) Responsibility for Safety Inspections

B.

Rejection, Acceptance, and Remedies for Defects

1. Rejection a) Rejection Standards (1) (2) Strict Compliance Nature of Specifications (a) (b) (c) Specifications not Suited to Strict Compliance Brand Name or Equal Specifications Brand Name and Proprietary Specifications Page 17 of 33

Performance of Government Contracts

(3) Limitations on Strict Compliance (a) (b) b) c) Construction Contracts First Articles

Proving Noncompliance Notice of Rejection (1) (2) Content Time

d) 2.

Previous Action Limiting Rejection

Acceptance a) b) c) Authority to Accept Time and Place of Acceptance Methods of Acceptance (1) (2) Formal Acceptance Implied Acceptance (a) (b) (3) (4) (5) (6) Late Rejection Government Acts Inconsistent with Contractor Ownership

Payment Alone not Acceptance Acceptance for a Limited Purpose Use and Possession Under Construction Contracts Conditional Acceptance

3.

Remedies a) b) c) Contractor Correction Government Correction Price Reduction

C.

Post-Acceptance Rights
Page 18 of 33

Performance of Government Contracts

1. Latent Defects, Fraud, and Gross Mistakes a) b) c) d) e) 2. 3. Fraud Gross Mistake Amounting to Fraud a) b) c) 4. 5. Nature of Misrepresentation Reliance Injury Known Defects Reliance on Contractor Testing or Assurances Nature of Specification Ease of Government Inspection Past Experience

Effect of Contractor Certification Notice and Proof of Defects a) b) Proof of Defect Notice of Defect

6.

Government Rights After Retraction of Acceptance

D.

Warranties
1. 2. 3. Scope of Warranty Clauses Specification Provisions and Implied Warranties Notice and Burden of Proof a) b) 4. Government Notice of Nonconformance Governments Burden of Proof

Remedies Under Warranty Clauses

E.

Cumulative Remedies

Page 19 of 33

Performance of Government Contracts

IX. Default Termination
A. Consequences of Default Termination
1. 2. 3. Impact on Contractor Impact on Government Fixed-Price supply Termination Inventory

B.

Right to Terminate
1. Grounds for Termination a) Failure to Perform or Deliver (1) (2) Slight Delays in Performance Timely Delivery of Defective Supplies (a) (b) (c) (d) (3) Timely Tender Reasonable Belief That the Goods Conform Defects Minor in Nature and Readily Correctable The Cure Period

Limitations on Termination of All Work (a) (b) Accepted Work Substantial Completion (i) (ii) (c) (d) Construction Contracts Service Contracts

Severability Installment Contracts Excepted

(4) b)

Preproduction Items

Progress Failures (1) Basic Principle

Page 20 of 33

Performance of Government Contracts

(2) Evaluating Progress Failures (a) (b) The Impossible Test The No Reasonable Likelihood Test

(c) Failure to Comply with the contract Quality and Other Requirements (3) (4) c) Proof of Endangered Performance Construction Contracts

Failure to comply with Other Provisions (1) (2) Scope of Right Application of Rule

d)

Failure to Proceed (1) (2) (3) Notification to Proceed Scope and Nature of Obligation Exceptions to the Duty to Proceed (a) (b) (c) Government Material Breach Impractical to Proceed Lack of Clear Direction

e)

Anticipatory Repudiation (1) (2) (3) Timing of Remedy Evidence Considered Examples of Anticipatory Repudiation (a) (b) (c) (d) Express Refusal to Perform Failure to Give Adequate Assurances Express Statement of Inability to Perform Actions Indicated Inability to Perform

Page 21 of 33

Performance of Government Contracts

(4) f) 2. Retraction of Repudiation

Subcontractor Termination

Waiver of the Right to Terminate a) The Basic Concept (1) (2) b) c) Construction Contracts Waiver Prior to Due Date

Reasonable Forbearance Government Election to Continue Performance (1) (2) Unreasonable Delay Acts on Government

d) e) f)

Contractor Reliance Reservation of Right to Terminate After Completion Date Reestablishment of the Right to Terminate After Waiver

C.

The Termination Decision

1. Discretionary Function a) b) Person Exercising Discretion Factors to be Considered (1) (2) (3) FAR Factors Other Relevant Considerations Alternatives (a) (b) c) d) e) Convenience Termination Negotiating a Schedule Extension

Improper Decision Making Informational Deficiencies Improper Motive Page 22 of 33

Performance of Government Contracts

f) 2. Other Objectionable Conduct by the Government

Reconsideration of Default Termination

D.

Termination Procedures
1. Delinquency Notices a) Cure Notices (1) (2) (3) (4) b) 2. Circumstances for Use Form of Cure Notice Effect of Denial of Cure Period Adequate Assurances

The Show Cause Notice

Termination Notice

E.

Excess Costs of Reprocurement

1. 2. The Fulford Doctrine Reasonableness of Government Action a) Similarity (1) (2) (3) (4) (5) b) c) d) Changes Reducing Cost of Work Test for Determining Similarity Changes in Inspection and Testing Changes in Terms and Conditions Changes in Method of Procurement

Effect of Relaxed Specifications That Contractor Could have Met Variations in Quantity Reproduced Mitigation (1) (2) Lack of Negotiation or Price Analysis Lack of Competition Page 23 of 33

Performance of Government Contracts

(3) (4) (5) (6) Soliciting Original Bidders Delayed Award of Reprocurement Contract Effect of Failure to Mitigate Refusal to Deal with Original Contractor

F.

Liquidated Damages
1. 2. General Policy Enforceability of Liquidated Damages Clause a) Reasonableness of the Forecast (1) (2) Time of the Forecast Accuracy of Measurement of Forecast Damages (a) (b) (c) (d) (e) b) 3. Proportional Application Fixed Daily Rates Inclusion of Administrative Expenses Maximum Assessment Use of Standard Formulae

Difficulty of Accurate Estimation

Relief from Liquidated Damages a) b) Excusable Delays Substantial Completion

4.

Relationship with Default Termination a) Concurrent Running of Liquidated Damages and Excess Costs of Reprocurement b) Effect of Waiver

X.

Termination for Convenience

Page 24 of 33

Performance of Government Contracts

A. B. Background The Right to Terminate
1. 2. Termination Clauses Exercising the Right to Terminate a) The Decision to Terminate (1) (2) (3) b) The Governments Interest Special Situations Terminations in Support of Competition

Limitations on the Right to Terminate (1) (2) (3) (4) The Kalvar Test Government Bad Faith or Abuse of Discretion The Torncelo Test No Change in Circumstances The Krygoski Test No Intention to Fulfill Promis Violation of Paramount Government Policies

3. 4.

Partial Terminations Procedural Requirements a) b) Notice of Termination Termination for Default versus Termination for Convenience

5.

Finality of Termination for Convenience

6. Deletion of Work Through Termination for Convenience, Changes, or Other Clauses

C.

Constructive Termination
1. 2. 3. Wrongful Default Terminations Governments Failure to Perform Under an Indefinite Delivery Contract Cancellation of Award

D.

Termination Settlements
Page 25 of 33

Performance of Government Contracts

1. Procedures a) b) c) d) Obligations of the Parties Basis for Settlement Proposals Time of Submission of Proposals Imperfect Proposals

e) Terminations for Convenience Settlement Proposals Under a Termination for Default f) g) h) 2. Negotiation of Final Settlement Unilateral Determination Appeal of Convenience Terminations

Nature and Amount of Settlements a) b) c) d) Basic Principles Recoverable Costs Settlement Expenses Overhead, Profit, and Loss Contracts (1) (2) Post-Termination Overhead Profit or Loss Adjustment (a) (b) Profit Loss Adjustment

XI.

Payment and Discharge

A. Types of Payment
1. Payment of the Price a) b) Partial Payments Billing Prices

Page 26 of 33

Performance of Government Contracts

2. Progress Payments a) b) c) 3. Progress Payments Based on Costs Progress Payments Based on Percentage of Completion Performance-based Payments

Other Financing Techniques a) b) c) Advance Payments Commercial Item Financing Provisional Payments

B.

Payment Procedures
1. Documentation and Authority a) b) c) d) e) f) 2. 3. Invoices and Vouchers Documentation of Acceptance Assignment of Payment Payment Authority Overpayment Discounts

Electronic Payment Time for Payment of the Price a) b) Other Than Simplified Acquisition Fast Payment

4.

Progress Payment Procedures a) Cost-Based Progress Payments (1) (2) (3) Time for Payment Delays in Payment Suspension or Reduction of Progress Payments Page 27 of 33

Performance of Government Contracts

(4) b) Liquidation of Progress Payments

Construction Progress Payments (1) (2) (3) (4) Time For Payment Liquidation of Progress Payments Subcontract Payments Retainage

5. 6.

Payment Under Incrementally Funded Contracts Withholding a) b) c) Government Right to Withhold Limitations on Withholding Discretionary Actions

C.

Setoff
1. 2. Right to Setoff Limitations on Setoff a) b) c) d) Rights to Payment Assigned to Financing Institutions Performance-Bond Surety Separate Debts of Partners or Joint Ventures Bid Deposits

D.

Debt Collection Procedures

1. FAR Debt Collection Procedures a) b) c) d) e) Debt Determination Negotiation and Demand Deferment Agreement Contracting Officer Decision Withholding or Setoff Page 28 of 33

Performance of Government Contracts

2. 3. The Debt Collection Act The Contract Disputes Act

E.

Remedies
1. Contractor Remedies for Delayed Payment a) Interest (1) Prompt Payment Act (a) (b) (c) (2) Coverage Interest Penalty Procedures

The Contract Disputes Act (a) (b) (c) (d) (e) (f) Time of Accrual of Interest Rate of Interest Delay in Payment Conversion into a Claim Settlement Government claims

b) 2.

Injunctions and Other Remedies

Government Remedies for Overpayment and Improper Claims a) Interest on Overpayments (1) (2) b) Statutory Requirement Contract Clause

Fraudulent Claims for Payment (1) (2) Civil Fraud Criminal Fraud

F.

Discharge
Page 29 of 33

Performance of Government Contracts

1. Final Payment a) b) Delay in Contract Closeout Legal Effect of Final Payment (1) (2) (3) (4) 2. 3. The Contractors Release of Claims Effect of Release Government Claims Clauses Barring Claims After Final Payment

Mutual Agreement and Recission Contract Modifications a) b) c) Accord and Satisfaction Modifications Without Specific Release Language Modifications with Release Language

4. 5.

General Releases Techniques for Avoiding Releases a) b) c) d) e) Lack of Consideration Mistake Economic Duress Fraud and Misrepresentation Lack of Authority

XII.

Disputes
A. Coverage of Disputes Process
1. Claims Relating to the Contract a) b) Remedy Granting Clauses Breach of Contract Claims

Page 30 of 33

Performance of Government Contracts

c) 2. Mistakes Alleged After Award

Subcontractor Controversies a) b) Direct Subcontractor Claims Indirect (Sponsored) Subcontractor Claims

B.

Assertion of Claims
1. Nonroutine Requests for Price Adjustment a) b) c) d) e) 2. Distinguishing Routine and Non-Routine Requests for Payment Routine Request Converted into Claim REA Submissions Converted into a Claim Convenience Termination Settlement Proposals Continued Negotiations

Assertion of Contractor Claim a) Party Entitled to Assert Claim (1) (2) Dissolved Contractors Separate Entities (a) (b) (c) (d) b) c) d) e) f) Assignees Sureties Merged Contractors Agents of a Contractor

Claim Content Request for Sum Certain Request for Contracting Officer Decision Submittal to the Contracting Officer Certification (1) Threshold Page 31 of 33

Performance of Government Contracts

(2) Significance of Defective Certification or Absence of Certification (a) (b) (c) (d) (3) (4) (5) g) 3. Correctable Defective Certifications Intentional or Negligent Disregard Absence of Certificate Certification or Combination

Revision of Claim Claims Not Involving Quantum Authorized Signature

Conversion into a Claim

Time for Submittal

C.

Contracting Officers Role

1. Negotiated Settlement a) b) Policy Favoring Settlement Settlement Authority (1) (2) 2. Negotiation after Issuance of Final Decision Settlement During Litigation

Final Decision of the Contracting Officer a) b) Time for Issuance of Decision Failure to Issue a Timely Decision (1) (2) c) An Order to Issue a Decision Appeal of Deemed Denial Decisions

Form and Content of Decision (1) (2) (3) Written Decision Notification Responsive to the Claim Page 32 of 33

Performance of Government Contracts

(4) (5) d) Reasons for the Decision Decision in Wrong Form May Bind the Government

Quality of the Decisional Process (1) (2) (3) (4) (5) Replacement of Contracting Officer Advice from Other Officials Orders of Superior Review of Decisions Unbiased and Impartial Decision

D.

Litigation of Disputes Act Claims

1. 2. The Decision to Appeal or Bring Suit Choice of Forums a) b) c) 3. Election of Forum Binding Fragmentation and Consolidation of Claims Bankrupt Contractors

Timely Appeal or Suit a) b) Receipt of Decision Date of Appeal or Suit

Page 33 of 33