Our
Firm
The Contract Disputes Act establishes an administrative law process for pursuing and resolving claims and disputes involving Government contracts. The attorneys of Petrillo & Powell have lengthy and broad experience in all aspects of this process, including the preparation of contract claims and appealing Contracting Officer’s final decisions. We have prepared and negotiated requests for equitable adjustment arising out of change orders, constructive changes, terminations for convenience, and other compensable events. We have defended contractors from Government claims and counterclaims, and terminations for default.
Claims
We regularly assist clients in preparing, submitting, and negotiating claims for equitable adjustment, and for other relief, both monetary and non-monetary. Some examples include:
- Proposals for termination settlement costs. We advise clients on which costs are allowable, and how to compute and present them, including the selection of the proper format under the regulations. We assist in convincing Government personnel that the claimed cost categories are indeed appropriate, providing support when necessary from the text of the regulations or from decided cases. We prepare any request for equitable adjustment needed to avoid a "loss adjustment" to the amounts recovered. We find and support those legal theories which can maximize recovery.
- Claims for defective Government-furnished property. We assist in presenting claims for additional costs due to defective property furnished to the contractor by the Government for performance purposes. For instance, we assisted in recovery of the additional costs incurred when the contractor staffed a Government facility which was inadequate for its intended use.
- Claims for constructive changes. We advise on which types of events qualify as a compensable change to the contract, and how to prevent having such a claim defeated by the alleged lack of authority of Government agents. We work with the contractor’s accounting and/or bookkeeping staff to preserve and present the additional costs. We provide the necessary legal authority to establish entitlement to relief.
Terminations for Default
When the Government threatens to terminate the contract for default, we assist our clients in presenting cogent and timely arguments opposing termination. When a default termination does occur, we assist in opposing it and limiting the collateral consequences.
Litigating Disputes
Most claims are resolved through settlement, but when that isn’t feasible, we pursue a contractor’s rights in a formal legal proceeding, or through alternative dispute resolution.
The attorneys of Petrillo & Powell, P.L.L.C. have litigated a wide variety of Government contract disputes before the Boards of Contract Appeals, the Court of Federal Claims, and the Court of Appeals for the Federal Circuit. Recently, the firm has handled the following appeals at the Boards of Contract Appeals:
1. Community Consulting International, ASBCA No. 53489, Aug. 2, 2002.
The law greatly limits the opportunity to bring a bid protest on the award of task or delivery orders. We recently have found a new way to enforce contract provisions promising the contractor a “fair opportunity” to be considered for such orders. In a case of first impression, the Armed Services Board of Contract Appeals held that our client could enforce the ordering provisions in a multiple-award indefinite quantity contract. As the law requires, these provisions set forth specific procedures for ordering, including when and how a contractor is considered for award. Failure to follow these procedures was a breach of contract, entitling the contractor to damages. We later settled this case, including the issue of damages, through alternate dispute resolution.
2. Sentara Health System, Inc., ASBCA No. 51540, 99-1 BCA ¶ 30,323, and ASBCA No. 51540, 99-2 BCA ¶ 30,454 (1999).
These related decisions involved Sentara Health System’s claim for the contractor’s share of value engineering savings realized by the Department of the Navy as a result of adopting Sentara’s value engineering change proposal. The VECP had suggested a new method for fulfilling certain data collection activities at the health care clinics operated by Sentara for CHAMPUS beneficiaries. The Navy moved to dismiss the Appeal for failure to state a claim because at the time Sentara submitted its VECP, the contract had not yet been modified to add the requirement which was the subject of the VECP. After briefing, the Board denied the motion to dismiss. The Navy moved for reconsideration of this decision, which was also denied.
Following a three day hearing, the Board held for Sentara on the issue of entitlement. Sentara Health Systems v. Department of the Navy, 2001-1 BCA ¶ 31,198 (2000). The Navy appealed this decision to the Court of Appeals for the Federal Circuit. Subsequently, the parties agreed to settle the case and the Government withdrew its appeal.
3. T&M Distributors, Inc., ASBCA No. 51405, 1999 WL 1116977 (1999).
T&M had filed a claim for constructive changes to its indefinite delivery, indefinite quantity contract with the Defense Logistics Agency. After trial, the judge decided the issue of entitlement in T&M’s favor. The Board found that the parties’ course of dealing over the life of the contract had established an implied term which was binding on the Government concerning the manner and rate of Defense Logistics Agency ordering under the contract. The Board found that the agency had acted contrary to this implied term which had, as a result, increased the contractor’s costs for performing the contract and that the contractor was therefore entitled to compensation under the contract’s changes clause.
4. A Government agency assessed credits against our client for late performance of services. We appealed from the contracting officer’s final decision to the U.S. Court of Federal Claims. After discovery, we were able to negotiate a favorable settlement of the matter.
Other matters in which members of the firm have participated include the following reported and unreported matters.
1. T&M Distributors, Inc. v. United States, 1998 WL 118077 (Fed.Cl.), aff’d 185 F.3d 1279 (C.A.F.C. 1999) (whether the terrmination of a contract for convenience was proper, or was a breach of contract, when it resulted from the contractor’s notification to the Government that the information in the solicitation was inaccurate).
2. International Transducer Corp., v. U.S., 30 Fed. Cl. 522 (1994) (contractor brought claim based on constructive change theory for increased unit costs).
3. Container Systems Corporation, Inc., ASBCA No. 40,611, 94-1 BCA 26,354 (1993) (contractor appeal of termination for default).
4. Standard Technology, Inc., ASBCA No. 41831, 91-2 BCA 23936 (1991) (Board denied Government motion to dismiss claim on procedural and jurisdictional grounds).
5. Detyens Shipyards, Inc., GSBCA No. 10707-COM and 10449-COM, 1990 WL 191,743 (1990) (notice of settlement and dismissal of claim involving contractor’s request for equitable adjustment and Government counterclaim for defective workmanship).
6. Tektronix, Inc., v. U.S., 216 Ct. Cl. 144 (1978) (Case involving computation of damages for patent infringement by Government contractors).
7. Negotiation of settlement in lieu of debarment.
8. Negotiation of guilty plea/consent judgment to minimize risk of debarment or suspension.
9. Negotiation of settlement of claims for increased costs resulting from inadequate Government-owned, contractor-operated production facilities (several separate contracts for multiple clients).