This is the eighth (and last) of an eight-part series addressing cutting-edge strategies for Certified Claims under the Contract Disputes Act (CDA). Certified Claims are the primary avenue available to government contractors to recover damages due to changes, delays, inefficiencies, and other government-caused issues – a particularly important point for contractors seeking to maintain positive cashflow while facing the prospect of an economic slowdown or recession.
You can check out previous posts starting here.
In this series, I’ve covered contractor CDA Claims against the government from several perspectives. While primarily used as a mechanism for recovering time and costs, CDA Claims can arise under a variety of remedy granting contract clauses – and even be used to challenge negative CPARS performance evaluations.
Regardless of the underlying basis for the Claim or the specific relief sought, there are certain best practices that apply across the board. Contractors should be mindful of these core principles throughout the Claim process and (if necessary) litigation against the government.
Proper Notice and Supporting Documentation
Contractors should take prompt and purposeful action to document government-directed contract changes and government-caused project impacts. In fact, proper notice is not just a best practice – is an express requirement for recovery.
After a change or other impact arises, contractors must take care to continue to perform and document the additional time impacts and/or costs incurred. That documentation is key to negotiating a change order with the government or, if all else fails, proving damages before the Court of Federal Claims (COFC) or Board of Contract Appeals.
Certification Requirements – and Consequences
For Claims over $100,000 (as well as certain Requests for Equitable Adjustment), contractors must sign a certification indicating that the submission is made in good faith and with accurate/complete supporting data. Signing this certification is a required step – but should not be viewed as a mere formality.
Once signed, the certification provides a key tool for the government to push back against alleged false claims. To be clear, contractors should not view the certification as a deterrent to filing legitimate claims or litigating in good faith against the government. Certifying the claim should instead be a helpful reminder of the need to present costs with solid supporting data and backup.
Choosing the Path Forward
Submitting a claim does not guarantee an actual dispute with the government. In many cases, the government can (and should) engage in good faith/cooperative negotiations to provide just compensation.
However, if the government does deny the claim (in whole or in part), it sets off a chain reaction of important decisions that the contractor must make. The contractor should consider the context of the project as a whole (are there other claims out there?), the appropriate forum (COFC or Board), and whether there are advantages to accelerated procedures or other alternative dispute resolution mechanisms available.
Claims that end up before a Board or the Court must be proved in a hearing or trial – and contractors should treat the process with the same rigor as a perhaps more traditional courtroom setting. By that point, the legal arguments for entitlement are set. The outcome often comes down to the evidence in the record and the credibility of testifying witnesses (including experts).
In that way, thinking of the possibility of litigation as an endgame can be helpful when contemplating, preparing, and submitting a claim. Do you have the documentation and cost backup in place to convince a neutral third party that you are entitled to the claimed contract adjustment?
Contractors with that kind of proactive mindset not only tend to win at the end of the day, they are more likely to present comprehensive claims that get paid up front.
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