Lifecycle of a Claim, Part III: Submitting a Claim

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Stephanie M. Harden and David L. Bodner ●

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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

Lifecycle of a Claim, Part II: Submitting a Request for Equitable Adjustment and Negotiation

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Stephanie M. Harden and David L. Bodner ●

Stephanie Harden's Headshot Photo

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.

      • REA: A request (rather than a demand) to negotiate with the contracting officer to adjust the contract for price, time, or other terms. There is no FAR definition of an REA but generally an REA does not expressly or implicitly request a contracting officer’s final decision (“COFD”) or contain the FAR 33.207(a) certification.
      • Claim: A “written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” FAR 2.101; FAR 52.233-1(c).
Continue readingLifecycle of a Claim, Part II: Submitting a Request for Equitable Adjustment and Negotiation

Lifecycle of a Claim, Part I: Identifying the Change and Providing Notice

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Stephanie M. Harden and David L. Bodner ●

Stephanie Harden's Headshot Photo

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:

      • Actual Changes: According to the Federal Acquisition Regulation (“FAR”), a change occurs when the Contracting Officer issues a written order to make changes within the general scope of the contract to matters such as drawings, designs, or specifications; the method of shipment or packing; or the place of delivery. See, e.g., FAR 52.243-1.
      • Constructive Changes: A constructive change arises when the contractor is required to perform work beyond the contract requirements, but the Government does not issue a formal change order. Constructive changes can arise from informal orders, defective specifications or other misrepresentations, interference from the Government, or constructive accelerations of performance.
Continue reading “Lifecycle of a Claim, Part I: Identifying the Change and Providing Notice”

Blank Rome’s Government Contracts Practice and Attorneys Highly Ranked in Chambers USA and The Legal 500

Chambers USA 2022

Chambers USA 2022 recognized Blank Rome as a leader in Government Contracts nationally in “The Elite Legal Rankings” and ranked Justin A. Chiarodo and David M. Nadler.

Chambers noted that clients say that Justin “is a skilled and service-minded lawyer who cuts to the chase and avoids red tape” “He is an excellent leader and superb relationship partner” and that Dave “is a terrific lawyer who anticipates issues and is forward-thinking about his advice.”

To view all of Blank Rome’s Chambers USA 2022 rankings, please visit our website.


The Legal 500 United States 2022

Blank Rome was ranked as a “Recommended Firm” in the area of “Government: Government Contracts” and several of our Government Contracts attorneys were highly ranked and recommended in The Legal 500 United States 2022, including:

“Leading Lawyers”: The Legal 500’s Guide to Outstanding Lawyers Nationwide

  • Justin A. Chiarodo
  • Scott Arnold

“Next Generation Partners”: The Legal 500’s Guide to Up-and-Coming Lawyers Nationwide

  • Dominique L Casimir (Government: Government Contracts)

Recommended Attorneys

  • Dominique Casimir
  • Justin Chiarodo
  • Luke Meier
  • Scott Arnold
  • Stephanie Harden

Key Lawyers

  • Scott Arnold
  • Dominique Casimir
  • Luke Meier
  • Stephanie Harden

To view all of Blank Rome’s Legal 500 United States 2022 rankings, please visit our website.

New Federal Circuit Guidance Regarding Patent and Latent Ambiguities

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Stephanie M. Harden, Patrick F. Collins, and Ustina M. Ibrahim*

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Ambiguities in a solicitation or contract have long been one of the greatest traps for unwary contractors. At the solicitation phase, a failure to identify a “patent” (i.e., obvious) ambiguity often results in the contractor losing the competition with no viable bid protest challenge. This is because such ambiguities are construed in the agency’s favor. A contractor seeking to recover added costs based upon an ambiguous contract term will be unable to recover such costs if the ambiguity is “patent” and the Government disagrees with the contractor’s interpretation.

Traditional Test for Patent vs. Latent Ambiguities

So how does one distinguish between “patent” and “latent” ambiguities? Numerous Federal Circuit authorities tell us that a patent ambiguity arises where there is “an obvious omission, inconsistency or discrepancy of significance” that “could have been discovered by reasonable and customary care.” E.g., Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312-13 (Fed. Cir. 2016) (internal quotations omitted). By contrast, a latent ambiguity is a “hidden or concealed defect which is not apparent on the face of the document, could not be discovered by reasonable and customary care, and is not so patent and glaring as to impose an affirmative duty on plaintiff to seek clarification.” Id. (internal quotations omitted).

Continue reading “New Federal Circuit Guidance Regarding Patent and Latent Ambiguities”

Thomson Reuters 2022 Government Contracts Year-in-Review Conference: Mandatory Disclosure

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Stephanie Harden's Headshot Photo

Blank Rome Partner Stephanie M. Harden co-presented the “Mandatory Disclosure” session for Thomson Reuters’ 2022 Government Contracts Year-in-Review Conference, a series of virtual online programs available through the West LegalEdcenter online platform.

Stephanie was joined for her one-hour session by co-presenter Amy Conant Hoang, a partner at K&L Gates LLP.

Additional topics covered at this year’s conference include:

      • Converging Procurement Systems
      • International Public Procurement Law: Key Developments 2021
      • Export Controls, Economic Sanctions, Anti-Corruption and CFIUS: Compliance and National Security Concerns
      • Statutes & Regulations
      • Bidding & Negotiation
      • Cost & Pricing Issues
      • Performance Problems
      • Terminations
      • Bid Protest Overview 
      • Disputes
      • Intellectual Property in Government Contracts
      • Emerging Policy & Practice Issues
      • Fraud, Debarment & Suspension
      • Cybersecurity for Government Contractors
      • Commercial Item Contracting
      • Accounting & Compliance
      • Labor & Employment

A copy of the full event agenda is available here.

Blank Rome LLP was pleased to once again serve as a sponsor for this leading industry event hosted by Thomson Reuters, which brings together hundreds of leading attorneys, executives, and government officials for high-level, expert briefings on the past year’s legal developments affecting government contracts. Each registrant received a PDF download copy of the conference briefs, which include a detailed outline and discussion of the topics addressed at the conference.

To learn more, please visit the Government Contracts Year-in-Review Conference event page.

Government Contractor FAQ: What’s up with the Vaccine Mandates?

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Scott ArnoldJustin A. ChiarodoStephanie M. Harden, and Samarth Barot

Lawsuits challenging the Biden Administration’s many vaccine mandates have changed the compliance landscape over the last few months. This post summarizes the current status of the four major mandates:

      1. Occupational Safety and Health Administration (“OSHA”) mandate;
      2. Healthcare Worker mandate;
      3. Federal Employee mandate; and
      4. Federal Contractor mandate.

Spoiler alert: The Federal Contractor mandate–which has caused the most significant confusion for Government contractors since its issuance–still does.

1. OSHA Mandate

OSHA’s Emergency Temporary Standard (“ETS”) required that all employees of employers with 100 or more employees either be fully vaccinated or wear a mask and submit to weekly COVID‑19 testing. On January 13, 2022, the Supreme Court upheld a preliminary injunction of the OSHA mandate, finding that it likely exceeded OSHA’s authority.

Status: Withdrawn (OSHA announced that it was withdrawing the ETS on January 26, 2022).

Continue reading “Government Contractor FAQ: What’s up with the Vaccine Mandates?”

Government Contractor Q&A: Impact of Nationwide Injunction Prohibiting Enforcement of Federal Contractor Vaccine Mandate

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Scott ArnoldJustin A. Chiarodo, and Stephanie M. Harden

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Yesterday the U.S. District Court for the Southern District of Georgia issued a preliminary injunction against enforcement of Executive Order (“EO”) 14042, under which prime contractors and subcontractors are required to ensure that all of their employees working “on or in connection with” covered federal contracts are fully vaccinated against COVID-19 (“Vaccine Mandate”). The order was issued in a lawsuit filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; governors of several of those states; and various state agencies that challenged the Biden Administration’s authority to issue the Vaccine Mandate. In its decision, State of Georgia, et. al. v. Biden, No. 1:21-cv-163, the court agreed with the plaintiffs’ argument that the Administration improperly relied on the Federal Property and Administrative Services Act (“FPASA”) to issue the Vaccine Mandate, concluding that the FPASA’s authorization for the President to impose policies to promote economy and efficiency in procurement did not extend to polices focused primarily on public health.

Continue reading “Government Contractor Q&A: Impact of Nationwide Injunction Prohibiting Enforcement of Federal Contractor Vaccine Mandate”

The Federal Contractor Vaccine Mandate: What You Need to Know

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WATCH WEBINAR RECORDING
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Brian S. Gocial, Stephanie M. Harden, and Frederick G. (“Gus”) Sandstrom

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Gus Sandstrom's headshot photo

Blank Rome LLP and the National Defense Industrial Association (“NDIA”) Delaware Valley Chapter are pleased to present this new live webinar on Monday, December 6, 2021, from 12:00 to 1:00 p.m. EST.

The rules and guidance around the federal contractor COVID-19 vaccine mandate are changing by the day. Please join Blank Rome’s Government Contracts and Labor & Employment attorneys for timely analysis of what federal contractors need to be prepared, including an in-depth discussion of:

  • Latest guidance: What do prime contractors need to know to comply? 
  • Which of my employees are covered by the mandate? 
  • Does the mandate apply to subcontractors? 
  • How do I deal with exemption requests? 
  • What should I do if my workforce is not fully vaccinated?

PRESENTERS

ABOUT NDIA

The National Defense Industrial Association drives strategic dialogue in national security by identifying key issues and leveraging the knowledge and experience of its military, government, industry, and academic members to address them. You can learn more about them on their website.

QUESTIONS? Please contact Alena Leon, Business Development Consultant.

New Government Guidance Sets January 4, 2022, as Uniform Vaccination Deadline

Justin A. Chiarodo, Stephanie M. Harden, and Samarth Barot

Stephanie Harden's Headshot Photo

Earlier today, November 4, 2021, the White House issued a fact sheet addressing its vaccination policies, including the government contractor mandate under EO 14042. Three key points stand out: (1) the compliance deadline for “full vaccination” status will be extended from December 8, 2021, to January 4, 2022; (2) the Occupational Safety and Health Administration (“OSHA”) vaccine rule for larger employers (which may permit weekly testing in lieu of vaccination) will not apply to workplaces covered by the federal contractor mandate; and (3) the Government continues to take the position that its mandates will preempt conflicting state or local laws. The full press release can be found at Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies.

How does this new guidance impact government contractor compliance with EO 14042?

Most notably, the guidance extends the deadline for full vaccination status for covered contractors from December 8, 2021, to January 4, 2022. Covered contractor employees should receive their final vaccine dose by the new January 4, 2022, deadline.

Continue reading “New Government Guidance Sets January 4, 2022, as Uniform Vaccination Deadline”
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