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.
FEDERAL CONTRACT TERMINATION OR MODIFICATION
The White House has directed Agency heads to “terminate or modify . . . covered contracts.” With some exceptions, there are […]
Roads & Bridges | Maximizing Damage Recovery
MAXIMIZING DAMAGE RECOVERY
Tracking Costs, Avoiding Duplication in Liquidated and Actual Damage Claims
A County and Contractor contracted for construction of a road and […]
Roads & Bridges | Roadwork, Delays and Disputes
ROADWORK, DELAYS, AND DISPUTES
The Subcontract Case In Pecos County, Texas
“Road construction is ubiquitous in our society. . . .” C&C Road […]
Roads & Bridges | Understanding Sovereign Immunity
UNDERSTANDING SOVEREIGN IMMUNITY| Public Contracts and Lessons from Recent Texas Cases
Generally, governmental entities are immune from lawsuits. One exception is contractual. If […]
Roads & Bridges | Indiana Court Upholds Broad ND4D Clause
INDIANA COURT UPHOLDS BROAD ND4D CLAUSE | Ruling Precludes Subcontractor Claims for Delay and Acceleration Damages
This is the story of an Indiana […]
Roads & Bridges | Some Conditions Apply
SOME CONDITIONS APPLY | The scope of insurance policy coverage and what the terms dictate
At some time or another, many have tried […]
Roads & Bridges | Contract Termination
CONTRACT TERMINATION | An unpredictable case teaches hard lessons to each party involved
Court decisions are “opinions.” There are majority and dissenting (disagreeing) […]
Roads & Bridges | Good Faith and Fair Dealing
GOOD FAITH AND FAIR DEALING | How Do You Prove a Party Has Failed to Act Based Upon an Ulterior Motive?
The duty […]
Roads & Bridges | Not Another Notice Story
NOT ANOTHER NOTICE STORY| This Defensive Argument Seems to be on the Rise
AS I CONSIDERED the subject matter for this column, I […]
