Non-Routine Request for Payment

An important decision was issued by the United States Court of Appeals for the Federal Circuit in 1996 called Ellett Constr. Co., Inc. v. United States, 93 F.3d 1537 (Fed. Cir. 1996). In the Ellett decision, the Federal Circuit ruled that a contractor’s termination proposal submitted after its contract has been terminated is a “non-routine” request for payment within the meaning of the Reflectone case. Although not a “claim” when initially submitted, such a proposal may eventually ripen into a Contract Disputes Act claim — without requiring another written submission by the contractor.

The court explained that, in order to be a CDA claim, a non-routine request for payment must be (1) a written demand or assertion, (2) seeking as a matter of right (3) the payment of a sum certain, and also (4) it must be submitted to the contracting officer for a final decision. A termination proposal does not meet this fourth requirement when first submitted, the court reasoned, because it is submitted initially for the purpose of negotiation and not for a final decision. But once negotiations reach an impasse, the court said, the termination proposal can be treated as satisfying this last requirement since a request that the contracting officer issue a decision in the event the parties are unable to agree on a settlement is “implicit” in the proposal.

Updated: August 2, 2018