Thursday, January 4, 2018

Court Orders Contracting Officer to Make a Decision

In 2011, The Navy awarded a contract to Fluor Federal Solutions (Fluor) to provide base operations support services at four Navy installations in Florida. In 2015, Fluor submitted an REA (Request for Equitable Adjustment) proposal (actually a consolidated REA of previously submitted REAs). In 2016 (seven months later), the Navy denied Fluor's REA stating that the submission was insufficient to reverse the Navy's position on previously submitted REAs. Fluor then submitted the consolidated REA as a certified claim.

The Navy then requested DCAA (Defense Contract Audit Agency) to audit the claim but told Fluor that a final decision would be issued on or before April 28th, 2017. In April however, the Navy informed Fluor that it was still waiting on the results of the DCAA audit and expected it to be completed by July 31, 2017 and a contracting officer final decision by December 1, 2017.

In September 2017, DCAA repeated requests for information that Fluor had already responded in writing the previous January and March - that it did not maintain certain records in the manner DCAA requested but expressed its willingness to answer specific questions regarding the data used to price the claim and provide DCAA an additional walk-through of the data.

Without responding to Fluor's September request, DCAA slapped a "denial of access to records" charge against Fluor on October 23, 2017. Eight days later, Fluor again repeated its assertion that it had responded to all DCAA requests and offered once again to meet with DCAA representatives. DCAA never responded to Fluor's letter.

In November 2017, the Navy notified Fluor that it was still waiting on the DCAA audit and established a new COFD (contracting officer final decision) by March 2018. Later that month, DCAA notified Fluor that it was cancelling its audit.

Fluor appealed this lack of progress to the ASBCA (Armed Services Board of Contract Appeals).

The Board noted that the Contracts Disputes Act (CDA) requires that a contracting officer issue a decision within a reasonable time taking into account such factors as the size and complexity of the claim and the adequacy of the information in support of the claim provided by the contractor. In this case, Fluor's claim is large and complex however the Navy had the information regarding the consolidated REA and claim for over two years. Given the history and number of promised COFDs and the present situation where it is unclear when the Contracting Officer will be issuing a final decision, it seems the parties have reached a stalemate which most likely will not be broken by agreement.

Accordingly, the Board directed the contracting officer issue a decision on Fluor's claim by January 31, 2018.

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