Government Contracting Database
It is well established that there is no prescribed format for claim submission but that certain elements must be present. First, the parties must be in a disputatious posture, so that the request for relief is not merely the opening or even the facilitation of negotiations but rather a ‘claim’, that is: a statement or demand for relief requiring final resolution. The determination of whether the parties are in this posture is based on the totality of circumstances including contemporaneous conduct. See, e.g., 41 U.S.C.A. § 605; Brisbin v. United States, 629 F. App’x 1000, 1003 (Fed. Cir. 2015); Maitland Bros. Co., ASBCA No. 34632, 91-3 BCA par. 24,246; Heyl & Patterson, Inc., ASBCA Nos. 40604, 42589, 91-2 BCA par. 23,972, 91-3 BCA par. 243233. Claims, moreover, must first be submitted to the contracting officer for consideration. If a contractor wishes to add a new claim to an appeal which is pending before the Board of Contract Appeals or the United States Court of Federal Claims, that claim, as well must first be submitted to the Contracting Officer. 41 U.S. Code § 7103.
It is well established that a Contractor has the burden of proving claims against the Government. Massman Const. Co. v. Tennessee Valley Auth., 769 F.2d 1114, 1123 (6th Cir. 1985) (citing Wunderlich Contracting Co. v. United States, 173 Ct. CI. 180, 351 F.2d 956 (1965)). Appellant has the burden of establishing the fundamental facts of liability. In 1987, “The FAR was amended to state that “[n]o presumption of reasonableness shall be attached to the incurrence of costs by a contractor,” thus shifting this burden onto the contractor as well. 48 C.F.R. § 31.201–3, as amended by 52 Fed.Reg. 19,804 (1987).” Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1244 (10th Cir. 1999). Generalized, conclusory and unsupported opinion testimony and evidence command little weight, even when not contradicted. Appeals of Green Int’l, Inc., ENGBCA No. 5706, 98-1 B.C.A. (CCH) ¶ 29684 (Apr. 2, 1998) (citing Northbridge Electronics, Inc. v. United States, 195 Ct. Cl. 453, 462; 444 F.2d 1124,(1971)).
If a Contractor meets its burden of proof as to entitlement, it still has to prove that its cost of, or the time required for, performing any part of the work of the contract was increased as a direct and proximate result of government action. Appeals of Green Int’l, Inc., ENGBCA No. 5706, 98-1 B.C.A. (CCH) ¶ 29684 (Apr. 2, 1998) (citing JM.Cashan, ASBCA No. 37368, 91-3 BCA 24,129); Charles T. Parker Construction Co. United States, 193 Ct. Cl. 320, 433 F.2d 771 (1970). Where delay is a factor, Appellant must show that the government caused the completion of the project to be delayed. Appeal of Webb Elec. Co. of Fla., Inc., ASBCA No. 54293, 07-2 B.C.A. (CCH) ¶ 33717 (Nov. 6, 2007) (citing Vic Lane Construction, Inc, ASBCA No. 30305, 85-2 BCA 18,156). Further, the critical path is crucial to the calculation of delay damages, if any, because only work on the critical path has an impact upon the time in which the project was completed; the government delay must have interfered with the project’s critical path. Kelso v. Kirk Brothers Mechanical Contractors. Inc., 16 F.3d 1173, 1177 (Fed. Cir. 1994).
Bare allegations and arguments made by an attorney are insufficient to meet the burden of proof on Appellant’s claims. An assertion or allegation standing alone does not constitute proof. Appeals of Green Int’l, Inc., ENGBCA No. 5706, 98-1 B.C.A. (CCH) ¶ 29684 (Apr. 2, 1998); Menoko Inc, ASBCA No. 46283, 94-1 BCA 26,570; D. J. Simons Construction Co., ASBCA No. 41336, 93-1 BCA 25,306. Also resort to a “jury verdict” method of determining cost recovery is not favored, and is justified only where clear proof of injury exists, no more reliable method of determining cost exists, and the evidence is sufficient for the Board to make a fair and reasonable approximation. Appeals of Green Int’l, Inc., ENGBCA No. 5706 (citing Dawco Construction, Inc– v. United States, 930 F.2d 872 (Fed. Cir. 1991); and John R. Hundley, VABCA 3493-3495, 951-BCA 27,494).
There is no best way to present a request for compensation to the government. There are numerous approaches which can be used. We will discuss below one general approach which has been extremely successful in presenting claims to the federal government.
A claim document, or a document which would present the facets of a dispute, could be organized in the following fashion:
- Project Execution/Project History
- Liability and Impacts
- Summary and Conclusions
In the Introduction section, the contractor should draft a brief description of the project and some of the problems which arose. This should only be four or five pages, with the intent of acquainting an individual, who may not be familiar with the project at all, with the major items involved and the general nature of the project.
The second section, Project Execution or Project History, should tell a story. This section should, in a chronological fashion if possible, examine what occurred during the project, dealing primarily with the salient facts. It should start at the beginning of the job, explain that the project was bid on a certain date, that a number of bids were received by the government, and proceed in the same fashion through the entire project. This portion of the presentation will not give every single detail, but rather will focus on those areas where changes, or the issues in the claim, have arisen.
During the course of this part of the presentation, anything which is noted and is of particular significance should be supported with the appropriate documentation. In other words, if a statement is made that the government took a certain course of action on a specific date and there is a document to support this, then this particular document should be included as an exhibit to that report or presentation. In this manner, the contractor presents not only the facts, but also the appropriate documentation which will back up the facts being asserted. Generally, it would be a tremendous chore to require the government to go back and ferret out the same information. Since the contractor has already performed this research while preparing its claim, the information should be presented with the claim.
In the course of describing what occurred on a project, the contractor should avoid the use of “purple prose.” Purple prose is the use of words in a more dramatic fashion than is absolutely necessary. In other words, there are many ways to describe what transpired on a project. For instance, a contractor may state the following position:
“The shop drawings for the reinforcing bars for the foundation were submitted on the 3rd of January, 1987. The contract absolutely required that the shop drawings be returned within 30 days. The government in complete disregard of the contract deliberately withheld the return of the shop drawings until the 30th of June, thereby, intentionally delaying the contractor for over six months in the effective and efficient prosecution of the work and actually delaying the overall completion of job.”
To describe a situation in that manner is using purple prose. The approach should be a factual one, not an emotional one. The same situation could be stated as shown below:
“The shop drawings for the reinforcing steel for the foundations were submitted on the 3rd of January, 1987. The contract requires in Article 23.1 that the shop drawings would be reviewed and returned within 30 calendar days by the government. The shop drawings were returned by the government on the 30th of June, 1987.”
In this case, the specific facts were related in a much more factual and much less emotional manner. This is the way the entire presentation should be prepared and presented.
In preparing a position for dispute, whether that position is prepared on the part of the government or the contractor, another factor should be kept in mind. If during the course of the analysis the drafter recognizes that it has caused problems, those matters should be included in the presentation of the facts. It will not help resolve the situation if either the contractor or the government ignores the fact that they may have delayed the project, caused the problem, or generated extra work. It is better to address weaknesses in the presentation, and thereby help resolve the overall dispute more expeditiously. Sooner or later the opposing side will raise the adverse facts and point out that your presentation did not include them in the analysis. It is far more credible to include anything which is negative to your side in your presentation, accept it, and move on from there.
In the third section, “Liability and Impacts,” the presentation should define specific changes that occurred, identify who caused the changes, and describe the impacts of those changes. The impacts may include extra work, inefficiency, delays, idle equipment, etc. It is here that one summarizes the various issues that are the main factors of the dispute and describes the impacts that may have occurred to either the contractor or the government because of those issues.
In section four, “Damages,” the costs associated with the various impacts will be clearly defined. The costs should be relatively straightforward, if you have defined the impacts clearly enough. For instance, if you can define that the contractor had to work five extra hours with a crew of three men, and a crane with one operator, for a particular item of extra work, the cost should flow in a rather straightforward fashion. A persuasive narrative in the third section of the presentation, will facilitate acceptance of your position in the fourth section concerning the damages.
The contractor should keep in mind that the cost it presents in the damage section must be supportable. It is entirely possible that those costs will be audited and, therefore, the contractor should be prepared to substantiate these costs with appropriate documentation. It is not normally necessary in the initial presentation to include all that backup documentation since this is normally an accounting task. It is much easier to present the damages in accordance with the impacts that have been defined, and then offer the government the ability to verify the damages that have been claimed.
The last section of the report involves the summary and conclusions and, indeed, is merely that: a summary of the facts and conclusions reached and the bottom line of the party presenting it.
This type of presentation is extremely effective. It can be used by either side. In fact, if no resolution of the dispute is reached early on, it probably should be used by both sides. It lays out for the contracting officer, or some higher authority, all of the salient facts and all the backup information. Understand that this presentation is a sales document, intended to convince the opposite side that your position is a correct one, and that you are entitled to the items presented in the claim document.
In addition, the following points should be kept in mind during claim preparation:
- It is helpful to review prior Board of Contract Appeals and judicial decisions which involve similar factual and legal issues to determine whether there is prior case law which establish precedents, or whether there are obstacles which you must overcome.
- Evidence should be gathered which will be useful in the event that legal proceedings are ultimately necessary.
- The Freedom of Information Act should be used to obtain documents from the government’s files which may be included as part of your claim.
- You should anticipate the government defenses to your claims and address them in your submission.
- Evaluate the need for legal and technical assistance in the preparation of your claim.
The bottom line in all of this is that you must do your homework!
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Updated: June 4, 2018