Friday, November 11, 2016
ASBCA Compels Contracting Officer to Issue Final Decision
When a contracting officer receives a certified claim over $100 thousand, the Contracts Disputes Act (CDA) requires that within sixty days of receipt of the claim, the contracting officer shall either issue a decision or notify the contractor of the time within which a decision would be issued. The CDA also requires that the contracting officer's decision shall be issued within a reasonable time, taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor. If a contractor believes that the contracting officer is taking unreasonable time, the contractor can petition the court (including the ASBCA or Armed Services Board of Contract Appeals) to direct the contracting officer to issue a decision in a specified period of time as determined by the Board.
In May 2016, Volmar Construction submitted eight claims to the contracting officer totaling $2.6 million. In July 2016, the contracting officer issued a decision on one of the minor claims ($59 thousand) but sent a letter back to Volmar telling them that a decision on the seven remaining claims would be deferred until the end of March, 2017. Volmar believed that 10 months for the contracting officer to make a decision was unreasonable so it petitioned the ASBCA to direct the contracting officer to issue a decision no later than a reasonable time as set by the Board.
The Government maintained that the March 31, 2017 estimated decision date was reasonable based on two factors. First, the contracting officer had no exposure to the issues raised in Volmar's claims and second, an outside scheduling expert had to be hired to examine the delay and impact damages.
The Board did not find the Government's arguments wholly persuasive. While noting that bringing on a contracting officer who has had no exposure to the issue can be time-consuming, internal staffing matters are not one of the factors used to determine a reasonable time under the CDA. It is a matter wholly and exclusively with the control of the Government. The Board also noted that according to the Government's own calculations, a report from a scheduling expert could have been produce by mid-October 2016.
The Board was not persuaded that such a lengthy time period is required. Accordingly, the Board directed the contracting officer to issue a decision no later than January 13, 2017.
Some contractors have waited much longer than 10 months to get a contracting officer to render a final decision on a claim. This decision should give encouragement to contractors that are impacted by contracting officer indecisiveness.
You can read the full ASBCA decision here.