Blank Rome LLP is pleased to announce that nine attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s (“ABA”) Public Contract Law Section for the 2023–2024 term, marking the highest number of ABA Public Contract Law Section leadership positions held by our attorneys in the firm’s history.
Visit our website to learn more about their roles and the Section of Public Contract Law.
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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 claims process, with practical guidance stemming from recent case law every step of the way. Click the subscribe button on this page 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:
Our previous posts are available at the following hyperlinks: Part I, Part II, and Part III. This post focuses on Steps 6 through 8 of this process: reviewing the Contracting Officer’s Final Decision (“COFD”), accepting or the appealing the COFD, and resolving or litigating the matter.
We begin with these essential questions: What is a COFD? What can a contractor do if it does not like the COFD? And what is the timeline to appeal a COFD?
What Is a COFD?
A COFD is a Contracting Officer’s (“CO”) decision on the merits, which provides the reasons for the decision and notifies the contractor of its appeal rights. 41 U.S.C. § 7103(d)-(e). The FAR describes a COFD as a written decision that:
i. Describes the claim or dispute
ii. References pertinent contract terms
iii. States the factual areas of disagreement
iv. States the CO’s decision, with supporting rationale
v. includes notice of contractor’s appeal rights “substantially as follows:”
Continue reading “Lifecycle of a Claim, Part IV: Contracting Officer’s Final Decision”Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
The Government Contractor, October 5, 2022
Stephanie M. Harden and David L. Bodner ●
The ability for a Government contractor to secure fair resolution of a contract dispute is essential for maintaining a vibrant competitive marketplace for federal contracts. The perceived fairness of the contract dispute resolution process is influential on contractor participation. S. Rep. No. 95-1118, at 4 (1978) (“The way potential contractors view the disputes-resolving system influences how, whether, and at what prices they compete for Government contract business.”). Yet even after passage of the Contract Disputes Act of 1978, it is often difficult for a contractor to secure a review of a claim on the merits due to a barrage of procedural and jurisdictional hurdles. The U.S. Court of Appeals for the Federal Circuit has cleared some of the thicket in recent years by reiterating its commonsense approach to evaluating the sufficiency of claims, finding that if a submission meets the requirements of a claim, it may be heard on the merits, even if it was not originally styled as a claim.
This Feature Comment discusses this recent guidance, including the Federal Circuit’s treatment of the difficult question of which contractor submissions may be treated as valid claims under the CDA, even if not styled as such in the first instance. We then offer practical guidance for contractors navigating these issues.
Learn more on our website.
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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:
Continue reading “Lifecycle of a Claim, Part III: Submitting a Claim“Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Stephanie M. Harden and David L. Bodner ●
Welcome back to our “Lifecycle of a Claim” series. This series explores the Contract Disputes Act 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 (covering Steps 1 and 2 of the infographic). This post focuses on Steps 3 and 4 of this process: submitting a request for equitable adjustment (“REA”) and negotiating the REA with the contracting officer.
Terminology Defined: What Is the Difference between an REA and a Claim?
There are two primary methods for pursuing a contract adjustment following a change: submitting an REA or filing a claim.
Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Stephanie M. Harden and David L. Bodner ●
Welcome to our new “Lifecycle of a Claim” series. This series will explore the Contract Disputes Act 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!
The claims landscape for government contractors can be a minefield of both procedural and substantive issues. Through this series, we are providing a guide to one common type of claim: those arising out of a “change” to the contract.
We are pleased to introduce this infographic (click here or the image below to expand), which illustrates the lifecycle of a typical claim:
This post focuses on Steps 1 and 2 of this process: identifying when a change has occurred and providing timely notice to the Contracting Officer. We begin with a few foundational questions:
What is a change?
There are two primary types of changes:
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Understanding the basics of cost realism can help offerors submit more competitive proposals and withstand cost realism challenges to award. The Government Accountability Office (“GAO”) cites cost realism as one of its “most prevalent reasons for sustaining protests” in its Fiscal Year 2021 Bid Protest Report.
What is a cost realism analysis?
A cost realism analysis is a FAR 15.404-1(d)(1)-prescribed proposal analysis technique where the agency determines if the proposed costs are realistic for the work to be performed. In a cost reimbursement contract, an offeror’s proposed costs are not controlling because agencies are responsible for all actual and allowable costs. A cost realism analysis determines if an offeror is proposing unrealistically low costs to secure award. An agency cost realism analysis evaluates each offeror’s proposed cost elements (e.g., direct costs, overhead, G&A, material and subcontracting, etc.) for the unique technical approach proposed to determine the expected cost of performance. If the agency determines a proposed cost element is unrealistic, the agency can adjust the offeror’s evaluated cost, typically upward. The agency uses each offeror’s evaluated cost to select the best value awardee. However, the contract award reflects the awardee’s proposed total cost.
Continue reading “Cost Realism: Frequently Asked Questions”Stay up to date by subscribing to our blog. Add your e-mail address to the Subscribe box on the right (below the post on mobile) to get our timely posts delivered directly to your inbox.
Blank Rome LLP is pleased to announce that David L. Bodner has joined the firm’s Washington, D.C., office in the Government Contracts practice group, which continues to expand following the recent additions of partner Elizabeth Jochum and associates Samarth Barot and Amanda DeLaPerriere.
Learn more about David on our website.
