Appealing a Contracting Officer’s Final Decision is a rejection of any offer of payment or settlement included therein.
In a recent example of this, a contractor agreed to renovate a portion of a VA hospital in Fayetteville, Arkansas. After contract award, the VA notified the contractor of extra asbestos abatement. The contractor provided a price to perform the extra work but the VA issued a unilateral modification for a lesser amount. The contractor performed the extra work and submitted a certified claim.
The CO issued a Final Decision agreeing to only a portion of the claim and issued a draft modification. The contractor countered by proposing a reservation of its rights so that it could accept the partial payment and preserve a future appeal for the balance. The CO rejected the contractor’s proposal and, effectively, conditioned the partial payment upon the contractor’s waiver of appeal.
Without the reservation of rights, the contractor had only three options:
- Accept the partial payment and have no appeal;
- Appeal the entire claim; or
- Walk away.
BES Design/Build, LLC v. Department of Veterans Affairs, Civilian Board of Contract Appeals 5640 (Aug. 29, 2017)
Roads & Bridges
Where Does the Buck Stop?
Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for subcontracts created on/after 1/1/23.
Also for subcontracts created on/after 1/1/23, the prime must specifically […]
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On a flood control project near Nogales, Arizona, severe flooding […]
Claim Certified with Digital Signature Deemed OK
The law is not a trend-setter. It doesn’t readily change or adapt to tech. So, a commonplace practice in business became a dispute when a claimant digitally certified a claim under the Contract Disputes Act.
Jonathan J. Straw
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