A dispute between the Government and contractor may arise in a variety of situations. These include, but are not limited to:
- Inability to agree upon an equitable adjustment
- Inability to agree upon the amount due following a contract termination
- Disallowance of costs
- Noncompliance with Cost Accounting Standards (CAS)
There are three principal means of disputes resolution between contractors and the contracting officer. These are
- Unassisted negotiation
- Alternative Dispute Resolution (ADR), and
- Appeal of a contracting officer final decision to the
- ASBCA (Armed Services Board of Contract Appeals) or
- United States Court of Federal Claims (COFC)
- a definitive or authoritative resolution of the matter is required for precedential value and such a proceeding is not likely to be accepted generally as an authoritative precedent
- the matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be and, and such a proceeding would not likely serve to develop a recommended policy for the agency
- maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions
- the matter significantly affects persons or organizations who are not parties to the proceeding
- a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record
- the agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the agency's fulfilling that requirement.
When resolution cannot be accomplished by negotiation or by ADR proceedings, contractors may file a formal claim. The claim must be in writing (see FAR 33.206(a)). It must request a "sum certain" or a decision concerning contract terms. In addition, contractors must certify claims over $100 thousand (see FAR 33.207). Uncertified claims will be rejected and returned to contractors.
To be continued...