As a contractor on a federal project, how often do you interact with the agency's contracting officer? Given the state of today's understaffed acquisition workforce, the answer is probably not very often, if at all. Instead, you more often find yourself dealing with a varied cast of characters during contract performance – including CORs, COTRs, and resident engineers. While these government representatives can act with the authority of the CO under many circumstances, there are certain times when only the CO will do.
One example of a communication that must go directly to the CO is a written claim for time or money under the Contract Disputes Act. In fact, the U.S. Court of Federal Claims recently issued a sharp reminder that claims that are sent to anyone other than the CO will not be considered. In the case of TPL, Inc. v. United States, the Court found it lacked jurisdiction over a claim not first raised with the CO. In other words, a claim not properly submitted to the CO can become essentially worthless to a contractor.
In addition to being directed to the appropriate personnel, there are numerous other pitfalls that can ensnare a claim, such as failing to provide a sufficient basis for entitlement, not requesting a sum certain, and, depending on the monetary value of the claim, failing to provide a proper certification. A contractor contemplating submitting a claim to the government must have its house in order or risk rejection based on a technicality.
Therefore, every contractor should remember these three rules for a successful claim:
(1) A written demand to the CO;
(2) Seeking time/costs as a matter of right; and
(3) Requesting the payment of a sum certain.
Your written submission must contain enough detail to inform the CO of the claim being made and sufficient facts/documentation to support the claim's basis. Be advised that routine requests for payment are insufficient to trigger a claim. Instead, a formal demand should be made, with a clear expression that you are entitled to payment and expect a decision by the CO on the matter.
With careful adherence to the rules, and prudent planning, you can ensure you do not end up like the unfortunate claimant in TPL, Inc.
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.