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Law360, February 17, 2023
Blank Rome’s Government Contracts group was recently named a 2022 Practice Group of the Year by Law360, which honors “the attorney teams behind litigation wins and major deals that resonated throughout the legal industry this past year.” Blank Rome is one of five firms recognized in the Government Contracts practice group category nationwide.
Read the group’s full Practice Group of the Year profile, as published in Law360, on our website.
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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.
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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!
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:
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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!
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).
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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.
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.
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.
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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).
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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.
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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:
Occupational Safety and Health Administration (“OSHA”) mandate;
Healthcare Worker mandate;
Federal Employee mandate; and
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).
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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.
