The equitable adjustment and claims processes are constants in federal contracting. Notwithstanding numerous provisions in government contracts that provide for equitable adjustments for changes, scope growth, delays and other unforeseeable occurrences, contractors often find that requests for relief are resisted by government customers. Wiley Rein attorneys are experienced in guiding contractors through the equitable adjustment and claims processes, and can assist clients in analyzing contract performance as part of that process, including the performance metrics used to track areas of cost growth and schedule performance. We also routinely counsel and represent contractors when the tables are turned, and the government is pursuing compensation against the contractor.
Wiley Rein attorneys work closely with contractor management, program, accounting and engineering personnel to develop strategies for recovery. We work with clients to investigate the facts, formulate optimal legal theories and draft and present requests for equitable adjustment (REAs) or certified claims in a manner that maximizes the contractor's chances of recovery, while being sensitive to relationships with government customers and other stakeholders. Whatever the controlling legal theory-constructive change, defective specifications, performance delay or acceleration, late or defective government-furnished property, performance impossibility/impracticability, breach of the government's duty to cooperate, or excessive testing or inspection-our Government Contracts attorneys know how to formulate strategies based on extensive experience with these theories of recovery as both government and contractor counsel.
If contractor or government claims cannot be successfully resolved short of litigation, we represent contractors in alternative dispute resolution (ADR) proceedings or disputes litigation before the Armed Services Board of Contract Appeals (ASBCA), the Civilian Board of Contract Appeals (CBCA), the Postal Service Board of Contract Appeals, and the U.S. Court of Federal Claims (COFC).
Representative experience includes:
- Currently representing Subsistence Prime Vendor (SPV) contractor in appeals before the ASBCA involving government and contractor claims totaling more than $2.5 billion arising out of contractor's provision of food and non-food distribution support to U.S. military bases throughout Afghanistan.
- Represented major defense IT contractor in successfully resolved litigation that involved 15 consolidated claims, including a government counterclaim, alleging breach of contract, delay and disruption, and constructive changes, in what was, at the time, the largest case in the history of the ASBCA; engaged in an "mega ADR" process that involved additional requests for equitable adjustment, fact-finding, submission of position papers, and three-week long oral presentations and mediation.
- Successfully obtained the dismissal of a government claim for increased costs alleged to have been incurred as a result of a voluntary change in the contractor's accounting system, on the ground that the government's claim was barred by the Contract Disputes Act's six-year statute of limitations. See Appeal of The Boeing Company, ASBCA No. 57490, 12-1 BCA ¶ 34916.
- In a case with industry-wide implications, successfully appealed government claims for repayment of reimbursed executive compensation costs by demonstrating statistical flaws in methodology used by Defense Contract Audit Agency (DCAA) to assess reasonableness of executive compensation costs. See Appeals of J.F. Taylor, Inc., ASBCA 56105, January 18, 2012, 12-1 BCA ¶ 34920.
- Defended a major federal construction contractor against subcontractor claims filed in federal district court, ultimately negotiating a favorable settlement after aggressively challenging the merits of the subcontractor's claims in a motion to dismiss and debunking the subcontractor's Critical Path Method (CPM) schedule analysis during settlement discussions.
- Negotiated highly favorable settlement through ASBCA ADR proceeding of U.S. Army Corps of Engineers claim alleging that third-party litigation and settlement costs were unallowable under FAR 31.205-47.
- Successfully obtained summary judgment on entitlement on all three counts on behalf of contractor seeking compensation for damages to vehicles leased to the Department of Defense (DOD) in Afghanistan. See Overseas Lease Group, Inc. v. United States, 106 Fed. Cl. 644 (2012).
- Prepared claims worth over $200 million for a major IT contractor, leading to the favorable restructuring of one of the largest Federal Acquisition Regulation (FAR) Part 12 commercial items contracts ever awarded.
- Developed, prepared, and favorably resolved a restructure proposal valued at hundreds of millions of dollars on a multi-billion-dollar classified program.
- Represented an IT company in connection with contract claims in excess of $40 million and related investigations under a contract worth hundreds of millions of dollars with the Department of Homeland Security (DHS), resulting in the successful settlement of the company's claims, the related investigations, and the restructuring of the contract.
ISSUE: WINTER 2015
IN THIS ISSUE
- On Your Mark, Get Set . . . SBA Proposes to Open Up Mentor-Protégé Program to All Small Businesses
- DC Employers: It's Time to Check Your Employment Application
- Combating Human Trafficking: Five Key Concepts for Ensuring Compliance with the Final Rules
- Do We Still Need OCI Reform?
- Mind Your Mods: A Unilateral Modification May Be Immediately Appealable
- Federal Circuit Addresses Adding Claims to Pending Court of Federal Claims Litigation and Delays in Providing Notice of Constructive Changes
- Speeches & Publications
Jury Reaches Verdict: Lockheed Did Not Fraudulently Underbid Air Force Contract
By Kevin J. Maynard and P. Nicholas Peterson
March 31, 2014
Inspection, Acceptance, and Warranty: Fundamental Government Contracting Principles Take on Heightened Importance in Wake of Federal Budget Uncertainty
By Daniel P. Graham, W. Barron A. Avery and Gary S. Ward
Winter 2014 | The Procurement Lawyer, Vol. 49, No. 2
Déjà vu All Over Again--Five Steps to Prepare for a Government “Shutdown”
By Daniel P. Graham and Craig Smith
September 30, 2013