Remember the adage, “what you say today could bite you tomorrow.”
Recently, a Contractor won its argument before the Armed Services Board of Contract Appeals (ASBCA) because the other party to the contract (the U.S. Army) prevented its own defense by insisting upon its own words and later trying to escape them.
Under a contract with the U.S. Army, Appellant/Contractor agreed to provide role-playing, human actors to help train soldiers to deal with civilians on a battlefield. Before the Army had issued the third of at least six task orders, the Contractor submitted a Request for Equitable Adjustment under Task Order No. 2.
In settling the Contractor’s Request for Equitable Adjustment, the Army drafted the language of a Contract Modification (Mod) stating “there are no further requests for equitable adjustments or claims to be submitted under this contract.” The Mod language was not limited to claims or requests by the Contractor. As such, the language included claims or requests by the Contractor AND the Army. This was the linchpin. Later, the Army lost its claim against the Contractor for damages related to Task Order No. 2 as the very language drafted by the Army in Mod 4 prevented the Army’s later claim.
Appeal of Supply & Service Team GmbH, ASBCA No. 59630, decided March 1, 2017.
Roads& Bridges | Confusing Waters
CONFUSING WATERS | A Supreme Court ruling leaves room for ambiguity
What happens when there may be a “significant nexus” between “adjacent” and/or […]
Roads & Bridges | Authority Defined
AUTHORITY DEFINED | The Law of Agency is Important to Understand
For any project, this Russian proverb is helpful: Doveryay, no proveryay – […]
Jurisdiction is Power
Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). […]
Roads & Bridges | Defining Labor
DEFINING LABOR | How the Miller Act continues to shape the industry
In the late 1700s, risks of nonpayment caused a shortage of […]
Roads & Bridges | Mediation Melee
MEDIATION MELEE| An arbitration case can be costly
Arbitration can be a bridge over troubled waters. In this crossing, the parties argued over […]
Roads & Bridges | Written Notice
WRITTEN NOTICE | Beware that strict compliance of the contract might be required.
When an owner replaced a contractor for significant safety violations, […]
Roads & Bridges | Mommie Dearest
MOMMY DEAREST | The story of an ESA without a MOM
Nobody enters this world, or a contract, without a mother: There can […]
IIJA | Does Closing a “Giant Loophole” Cost Contractors?
A recent article published by Roads and Bridges magazine reports that the Office of Management and Budget is working to broaden the scope […]
Roads & Bridges | Buy American Plan Gets an Update
BUY AMERICAN PLAN GETS AN UPDATE
The Office of Management and Budget is developing standards to replace the current Buy […]

Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio
