24 February 2016

Government Cannot Make Contractors Jump Through Hoops For A Final Decision

Are you required to cooperate?
United States Government, Public Sector
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After filing a claim under the Contract Disputes Act (CDA), the contracting officer may notify you that a final decision will be issued within “X” days after certain pre-conditions are met, such as:

  • Providing additional documentation supporting your claims or damages;
  • Attending a meeting to discuss your claims; or
  • Answering certain question allegedly required for the government’s review of your claim.

Are you required to cooperate?  For claims over $100,000, the CDA requires a contracting officer, within 60 calendar days, to either issue a final decision or notify the contractor of the date by which a final decision will be issued.  The Armed Services Board of Contract Appeals (ASBCA) recently held that a conditional final decision date, as described above, does not comply with this CDA requirement.  Thus, in such instances, a contractor may file an Appeal on a deemed denial basis without waiting for a final decision.

In Aetna Government Health Plans, ASBCA No. 60207, Aetna filed a claim for damages associated with a termination for convenience.  The Contracting Officer responded that the Government needed additional documentation to review the claim and would issue a final decision within 90 days after receipt of such documentation.

Aetna appealed to the ASBCA on a deemed denial basis without providing the requested documentation. The Government moved to dismiss the Appeal arguing that the Contracting Officer had not issued a final decision and that the additional documentation was reasonably necessary for review of the claim.

The Board held that the CDA requires a contracting officer to pinpoint the exact date by which a final decision will be rendered. "It is not enough to state that a final decision will be issued within a specified number of days after the occurrence of some future event."  Accordingly, the Board determined that the Contracting Officer did not comply with CDA and Aetna correctly appealed the decision as a deemed denial.

The take-away here is that if the government is requiring you to jump through hoops in order to get a final decision, there is no requirement to cooperate.  Sometimes it may make strategic sense to cooperate and provide additional information necessary for government review of your claim.  But, if you have fully supported your claim and the government is still requiring you to provide more and more information or documentation, you may be doing more harm than good.  Many times the government has already decided to deny the claim and is simply seeking additional justification for its decision.  In such instances, there is no requirement for you to continue to wait for the government to bolster its position.  If, within 60 calendar days after filing your claim, you do not receive a final decision or a date certain on which the final decision will be issued, you may file an Appeal without waiting for a final decision.

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.

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