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)
How to Find (and Confirm) the Plain Meaning in a Contract
Contract formation confirms the parties understand and agree to all the essential terms. When that understanding and agreement fades, how do you […]
Navigating the Requirements for Claims against Virginia Public Entities
Contractors making claims against Virginia public entities must follow ALL applicable requirements. Such requirements may be found in several places, so check […]
Virginia General Contractors Not Protected from Pre-Work Claim Waivers
On March 2, 2018, the Governor approved an act of the Virginia General Assembly to make unenforceable pre-work waivers of lien rights […]
Adding Terms to a Government Contract without Saying So
Imagine an incredulous Contractor asking, “Show me in the Contract where it says I’m supposed to do X?” The Government Contracting Officer smugly answers, “even though the Contract doesn’t say so, you must do it anyway.” Is that even possible, when, how?
Differing Site Conditions: When the Part Does Not Equal the Whole
If all apples are fruit, then why are all fruit not apples?
Forum Selection Can Be a Home-Court Advantage
I promise that any disputes between us will be argued at your house. Time passes and a dispute begins to brew. Now, I want to argue at my house, not at yours. You pay costs to argue at my house that you wouldn’t have incurred had I done as agreed. Should I have to reimburse your costs?
No-Damage-for-Delay and Owner-Related Dispute Clauses are No Defense to Surety Liability Under Miller Act
Prime Government Contractors - you may need to update your interim payment waivers.
Contractual Fairness is Whatever the Parties’ Agreed
When you know a current action or inaction is wrong, but you do not object, should you be allowed to object later?
Which Comes First – Specifications or Drawings?
Sometimes it's not better to ask for forgiveness after-the-fact.
