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Stephanie M. Harden and David L. Bodner ●
Welcome back to our “Lifecycle of a Claim” series. This series explores the Contract Disputes Act (“CDA”) claims process, with practical guidance stemming from recent case law every step of the way. Click the subscribe button on the right to get timely updates right in your inbox!
This series walks through this infographic (click here or the image below to expand), which illustrates the lifecycle of a typical claim:
Click here to read our first post and here to read our second post. This post focuses on Step 5 of this process: submitting a claim.
Seven Elements for Submitting a Claim
Once a contractor has made the decision to pursue a CDA claim, the contractor must ensure that it follows the Contract Disputes Act or risk jeopardizing its ability to obtain meaningful judicial review. While the Federal Circuit has made clear that a claim need not take “any particular form or use any particular wording,” below are seven fundamental elements that should be included:
- Submit the Claim in Writing and Describe the Facts and Basis
The CDA requires a claim to be in writing. 41 U.S.C. § 7103(a)(2). Additionally, the claim should describe the government acts or omissions at issue and the legal basis for how these acts or omissions caused the additional cost, work, or delay.
- Request a Sum Certain
Each claim should contain a sum certain—i.e., an exact dollar amount—that the contractor is seeking. Contractors should avoid hedging or putting qualifiers on the sum certain, which may invalidate the claim and a Board’s jurisdiction. Sage Acquisitions, LLC v. Dep’t of Hous. & Urban Dev., CBCA No. 6631, 22-1 ¶ 38,031 (Apr. 5, 2021). The sum certain should be supportable pursuant to the contractor’s certification. See FAR 33.209. The claim amount can be adjusted if new or additional information becomes available.
- Request a Contracting Officer’s Final Decision (“COFD”)
Although recent case law demonstrates a contractor is not required to explicitly request a Contracting Officer’s (“CO”) final decision, to mitigate potential disputes, the best practice is to specifically request (in writing) that the Contracting Officer issue a final decision. Zafer Constr. Co. v. United States, 40 F.4th 1365 (Fed. Cir. 2022). Submitting a claim requesting a COFD does not preclude an offeror from negotiating or otherwise working toward the claim’s resolution.
- Submit the Claim to the CO
While contractors frequently deal with government representatives other than the CO (e.g., COR, technical point of contact, contract specialist, etc.), the CDA requires submitting the claim to the CO. 41 U.S.C. § 7103(a)(1). A contractor should not rely on the government representative to deliver the claim to the CO. A contractor should submit the claim to the CO and additionally provide the claim to other government representatives.
- Use the Correct Certification
A prerequisite for the Courts and Boards is a certification for claims exceeding $100,000. Certain defects can be cured, such as defective certification showing an intent to comply with the CDA. DAI Glob., LLC v. Adm’r of the United States Agency for Int’l Dev., 945 F.3d 1196 (Fed. Cir. 2019). However, a failure to certify the claim at all—e.g., a claim “without anything appearing to be a certification”—is not always curable. Kamaludin Slyman CSC, ASBCA No. 62006, 21-1 BCA ¶ 37,849 (Apr. 29, 2021). It is better to avoid restarting the claim process by using the FAR 33.207(c)- or FAR 52.233-1(d)(2)(iii)-provided certification:
I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor.
- Sign the Claim
Contractors should sign the claim. The Armed Services Board of Contract Appeals (“ASBCA”) recently overturned precedent and opened the door to electronic signatures. Kamaludin Slyman CSC, ASBCA Nos. 62006 et al., 20-1 BCA ¶ 37,694 (Sep. 25, 2020). However, the ASBCA credited the fact that the signer’s identity was readily authenticated, despite the lack of an ink signature, due to the fact that he used the same e-mail address to transmit the typewritten signature that he regularly used to communicate with the Government. Whether an electronic signature will suffice where it cannot be “traced back to the individual making it” in this way remains an open question. The Civilian Board of Contract Appeals (“CBCA”) and Court of Federal Claims have not specifically ruled on whether electronic signatures suffice. Thus, a best practice is to sign the claim in ink, despite FAR 2.101 defining signature to include “electronic symbols.”
- Statute of Limitations
A contractor must submit its claim within six years of when the claim accrues. 41 U.S.C. § 7103(a)(4). A claim accrues “when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known.” FAR 33.201. The six years is not tolled by negotiations or by the fact that a request for equitable adjustment has been submitted. The ASBCA recently rejected a contractor’s argument that the government employed “misleading tactics” to extend the parties’ settlement negotiations beyond the expiration of the statute of limitations. Globe Trailer Mfg., Inc., ASBCA No. 62594, 21-1 BCA ¶ 37973 (Nov. 16, 2021). Contractors should carefully assess the status of their recovery and not be lured into complacency by the seemingly long six-year statute of limitations.
- Submit the Claim in Writing and Describe the Facts and Basis
- A Board or Court must have jurisdiction over each claim asserted by a contractor not just the case. Therefore, each claim must meet the above requirements. For instance, the ASBCA dismissed several claims for lack of jurisdiction because the contractor only specified one sum certain for the total of its claim as a whole instead of a sum certain for each discrete claim. ECC Int’l Constructors, LLC, ASBCA No. 59586, 21-1 BCA ¶ 37,862 (May 17, 2021), reconsideration denied.
- Claims are treated as separate “if they either request different remedies (whether monetary or non-monetary) or assert grounds that are materially different from each other factually or legally.” K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000 (Fed. Cir. 2015).
- With regard to remedies, contractors can adjust the dollar amount of the claim without it becoming a separate claim, but asserting different types of remedies such as expectation versus consequential damages are separate claims.
- With regard to factual or legal grounds, contractors can add “factual details or legal argumentation” relating to the same operative facts, but presenting a materially different factual or legal theory is a separate claim (e.g., a breach of contract for not constructing a building on time is a separate claim from breach of contract for constructing the building with the wrong materials). Id.
- Contractors should thoroughly plan the remedies and basis of claims arguments when presenting the claim to the Contracting Officer to avoid having to start the process over to make the preferred arguments or obtain complete recovery. Blanchard’s Contracting, LLC, ASBCA No. 62508, 21-1 BCA ¶ 37,807 (Feb. 22, 2021) (dismissing claims for lack of jurisdiction because the claims had a different factual basis from a different time period than the claim presented to the CO).
Effects of Submitting a Claim
Once a claim has been submitted:
- Obtaining a Decision
Filing a claim triggers a requirement for the CO to issue a decision within 60 days or within the 60 days provide a time when the decision will be issued. FAR 32.111(c).
A contractor can earn interest starting on the date the CO received the claim.
- Starts the Process for Adjudication
If the CO denies the claim, a contractor can appeal to a board of contracting appeals within 90 days or the Court of Federal Claims within one year.
- Obtaining a Decision
- An effective CDA claim will persuasively provide all the necessary information in a detailed and organized manner to minimize litigation over potential claim defects and to maximize the contractor’s chance to persuade the Contracting Officer of the claim’s merits.
- Claim a supportable amount. A claim for too much risks being denied by the Government and/or being scrutinized for fraud pursuant to FAR 33.209. Too low of a sum certain could result in under-recovery for the contractor. Providing detailed support for the sum certain will not only support the claimed amount but can facilitate the Government’s analysis and approval.
- When compiling a claim keep in mind the potential election of a Board or the U.S. Court of Federal Claims. This analysis can help frame the claim and prepare for a timely appeal.
- Pursuant to FAR 52.233-1(i), contractors must continue to perform required work, even while a contract dispute is pending, unless the government fails to provide clear direction or performing is impractical.
Read the previous posts in our series here:
Lifecycle of a Claim, Part I: Identifying the Change and Providing Notice – Government Contracts Navigator
Lifecycle of a Claim, Part II: Submitting a Request for Equitable Adjustment and Negotiation – Government Contracts Navigator