United States: CBCA Rules Contractor Under GWAC Task Orders Properly Submitted Claims To The Agency Ordering Contracting Officer Instead Of The Procuring Contracting Officer

In a case of first impression, the Civilian Board of Contract Appeals ("CBCA") ruled that a contractor performing task orders issued against a government-wide acquisition contract ("GWAC") properly submitted its claims to the Agency Ordering Contracting Officer ("OCO") instead of the Procuring Contracting Officer ("PCO"). The case – Sotera Defense Solutions, Inc. v. Department of Agriculture, CBCA 6029, 6030, 2019 WL 1977388 (Apr. 25, 2019) – involved two task orders issued by the Department of Agriculture ("USDA") to Sotera Defense Solutions, Inc. ("Sotera") for the provision of information technology ("IT") support services at agency locations throughout the country. The USDA issued the task orders against a GWAC awarded by the National Institutes of Health ("NIH"). A GWAC, as explained by the CBCA in its decision, is defined by the Federal Acquisition Regulation ("FAR") as a "task-order or delivery order contract for [IT] established by one agency for Governmentwide use."

The GWAC awarded by the NIH delineated roles for both the PCO and the OCO, stating they were the exclusive government officials with authority to take actions that may bind the Government under the contract and task orders, respectively. In awarding the GWAC, the PCO made a determination that the positions under the contract were exempt from the Service Contract Act ("SCA"). However, the GWAC also advised that an OCO would have to determine whether the SCA applied to any positions requested under a task order. Accordingly, when the USDA OCO subsequently amended the two task orders issued to Sotera to add SCA coverage, Sotera submitted claims to the OCO requesting equitable adjustments for the added costs of complying with the SCA. After deemed denials of its claims, Sotera appealed to the CBCA.

On appeal, the CBCA requested the parties brief the issue of the Board's jurisdiction, prompting the USDA to file a motion to dismiss on the ground that Sotera submitted its claims to the wrong Contracting Officer. In deciding whether Sotera should have submitted its claims to the PCO instead of the OCO, the CBCA noted that under FAR Part 8, disputes pertaining to the terms and conditions of an underlying schedule contract administered by the General Services Administration ("GSA") must be brought to the GSA Contracting Officer rather than the OCO. The CBCA recognized, however, that "[a] GWAC is different from a schedule contract administered by the GSA," and that under FAR Subpart 16.5's ordering requirements for GWACs, there were "no similar provisions bifurcating responsibility for the resolution of disputes." Thus, considering there were no cases in which this issue had been resolved, the CBCA was "left to decide this issue as one of first impression."

To resolve the issue, the CBCA turned to "the terms of the contract and the nature of the dispute" for guidance. To this end, the CBCA emphasized that the GWAC assigned responsibility to the ordering agency for identifying any additional labor categories on a task order that are governed by the SCA. In addition, the CBCA noted the SCA coverage issues were raised originally by the Department of Labor to the USDA Contracting Officer, rather than the NIH Contracting Officer, because the alleged violations were task order specific and, presumably, because the USDA Contracting Officer had the funds to withhold. Finally, the CBCA found the terms of the GWAC permitted the OCO to bind the Government with regard to task order matters. Given these facts, the CBCA held Sotera properly submitted its claims to the OCO, thereby giving the CBCA jurisdiction over the deemed denials of those claims.

As the CBCA's holding demonstrates, contractors performing task and delivery orders must be cognizant about not only the type of instrument governing their orders, but the terms of such instrument as well, when deciding to whom they must submit their claims. If an order were issued under a GSA schedule contract, then the contractor must follow the requirements of FAR Part 8 by bringing claims pertaining to order performance to the OCO, and bringing claims pertaining to the terms and conditions of the contract to the PCO. If, however, an order were issued under a GWAC, then to whom a contractor must submit its claims will depend upon the terms of the GWAC and the nature of the dispute. In Sotera, those terms and the nature of that dispute pointed to the OCO instead of the PCO. But under a GWAC with different terms, or given a different dispute, Sotera could very well have had to submit its claims to the PCO.

Of course, the FAR Council could eliminate this problem by simply promulgating a regulation that, like FAR Part 8 for GSA schedule contracts, clearly establishes bifurcated responsibility for the resolution of disputes on GWACs. But absent such a regulation, the determination of whether to submit a claim to the PCO or the OCO will remain a case-specific exercise. Consequently, contractors considering filing a claim on a GWAC order should work closely with their counsel to evaluate the terms of their GWAC and the nature of the dispute so that their claim winds up on the right official's desk. Depending on (1) when the claim accrued, (2) the interval between the filing of the claim with the wrong contracting officer and the initiation of any appeal, and (3) the point in time when the issue is resolved by a board or the Court of Federal Claims, the wrong choice for the submission of the claim could well have statute of limitations implications for the contractor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
6 Aug 2019, Seminar, Los Angeles, United States

The semi-annual seminar addressing changes and developments in state and federal wage and hour laws is a unique one-day program and hundreds of California employers, personnel managers, controllers, attorneys, payroll managers, and supervisors attend each year.

20 Aug 2019, Other, Los Angeles, United States

Description

Is Facebook Libra token focused on Centralization rather than Decentralization? #facebookcentralization

21 Aug 2019, Webinar, Los Angeles, United States

California has positioned itself as a leader on emerging cannabis policy. While federal law, including the Comprehensive Drug Abuse Prevention and Control Act of 1970, still prohibits cannabis-related activities within the State’s borders, several largely progressive laws in California permit the possession, cultivation, transportation, and distribution of cannabis.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions