Tuesday, April 3, 2018

The Importance of a Precisely Worded Final Decision

In 2014, the Army awarded a contract to a company called Protec for maintenance, inspection, and repair of fire alarm, fire suppression, and evacuation systems in Germany. In 2015, the contracting officer posted an unsatisfactory report in CPARS (Contractor Performance Assessment Reporting System) and also refused to pay some of Protec's invoices.

In 2016, Protec submitted a certified claim regarding the unsatisfactory CPARS reports and a certified claim for the unpaid invoices. In 2017, the contracting officer issued a COFD (Contracting Officer Final Decision) denying the claim for several reasons including (i) failure to maintain required professional certifications and (ii) failure to submit untimely maintenance schedules and condition reports and failed to comply with schedules, (iii) partial completion of some inspections, (iv) failure to provide a proper quality control program. The COFD concluded that the CPARS evaluation was accurate, and that the Government cannot pay invoices when the contract called for services that, even if attempted, did not comply with the performance work statement and certification requirements. The result of these failures cased any work performed by Protec to "be of no value to the Government.

Protec appealed to the ASBCA but the Government quickly moved to have the appeal dismissed for lack of jurisdiction. The Government argued that the COFD was invalid due to the fact that the COFD's basis for denying the claims purportedly was a suspicion of fraud and therefor the ASBCA lacked jurisdiction.

The ASBCA denied the motion calling the Government's position nonsense. The ASBCA stated that a suspicion of fraud was not the basis for the COFD. In fact, the COFD did not even mention fraud or a suspicion of fraud. Since the COFD was based upon rationales that the contracting officer was authorized to asset, the ASBCA has jurisdiction over the appeals.

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