Friday, May 22, 2015

Know the Solicitation Provisions - Convict Labor

A contractor filed a $1.4 million claim against the Army Corps of Engineers due to differing site conditions. The claim was denied and has been appealed to the ASBCA.

The contract was for construction of military housing. The contractor alleged that it was unable to get qualified carpenters onto base due to a change in base access policies. The contractor asserted that when it bid, it intended to use people with felony convictions and those in a pre-release program at a nearby prison. However, the Convict Labor clause (FAR 52.222-4) was included in the contract. The contractor claimed that it incurred increased administrative costs resulting from the need to process "hundreds" of applicants and perform "hundreds" of job interviews, all because it could not employ convict labor.

The problem with the claim was not that the allegations were not true but with the difficulty by the contractor to support the charges. During the course of the Government's review, the contractor

  • could not support its contention that there was a change in base access policies
  • its intentions to employ carpenters with felony convictions
  • increased costs due to processing and hiring new employees.

Claims are a tricky business where contractors must prove entitlement and quantum and the burden of proof rests solely upon contractors. In this case, the contractor may have been unfamiliar with the prohibition concerning convict labor. Had it included such intentions in its bid, the Government probably would have called them out - perhaps give them a chance to modify their bid. In any event, the costs related to interviewing and processing new hires would be the same regardless of the labor pool source.

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