We Identify And Prepare Claims For Submission To The Contracting Officer
Prompt notice of a change is essential. Failure to timely notify the contracting officer of the change can lead to an assumption of the risk that can defeat any claim.
Once a directed or constructive change has been identified, leadership must lead a team to assemble a damage claim during the performance period as part of perfecting notice. This often requires outside assistance as few contractors have the internal resources with the expertise in prospective and retrospective change analysis methods to handle this process while simultaneously building the project safely and in quality. Leadership must lead an effort that may require augmenting the project staff with outside expertise to ensure (1) the contract management control process stays intact, (2) a proper, detailed REA submission to the contracting officer is prepared timely, and (3) proper and timely responses to the contracting officer during his/her review of submissions occur.
Contractors must deploy the right expertise promptly on contractual entitlement and quantum. Most entitlement involves the government failing to discharge its implied by law and express duties, its mistaken interpretation of contract terms and conditions, and its failure to understand the doctrine of good faith and fair dealing. Entitlement not only involves careful analysis of all the facts, but it also requires knowledge of the various theories of recovery in government contract law.
The government warrants suitable performance if the contractor follows its drawings and specifications. The government also warrants performance is commercially practicable. In every contract, the government has the implied duty to disclose any information vital to the contractor’s performance. Even if the parties are equally ignorant of the vital information, the risk may be allocated to the government if it is in a better position to know the information.
The government is obliged under every contract to cooperate with, and not interfere in, the contractor’s performance. The government must do whatever is reasonably necessary to enable the contractor to perform successfully. Many constructive changes involve the government’s misunderstanding or misinterpreting contract terms and conditions. Often, where ambiguous, the contract is interpreted against the government, in other words, the contract’s drafter.