The Department of Veterans Affairs awarded Hawk Contracting Group, LLC (“Hawk”) a contract to redevelop an area of the Jesse Brown Veterans Affairs Medical Center. The contract was terminated for convenience. Thus, the VA requested Hawk to submit a settlement proposal. Because the settlement proposal exceeded $100,000, an audit was necessary under FAR 49.107.
On August 4, 2016, Hawk, still with no audit, converted its termination settlement proposal into a certified claim, requesting a decision within 60 days, or by October 3, 2016. In response, the VA Contracting Officer told Hawk that the decision would be rendered by January 20, 2017.
On October 24, 2016, the Hawk Contracting Group filed a case at the Civilian Board of Contract Appeals (“Board”) to force the Contracting Officer to render a final decision by November 30, 2016 instead of January 20, 2017.
The issue before the Board was whether to give the Contracting Officer more time to render a final decision. The Board noted that this depended on “a number of factors, including the underlying claim’s complexity, the adequacy of contractor-provided supporting information, the need for external technical analysis by experts, the desirability of an audit, and the size of and detail contained in the claim.” The Board also stated that additional time is not warranted if the delay in issuing a Contracting Officer’s final decision is attributable to “matters that are wholly and exclusively within the Government’s control, such as internal staffing and agency funding levels.”
During a conference call between the parties, the VA admitted that the delay in issuing a final decision was due to the unavailability of the OIG Audit Team, even though the VA had “almost a year to conduct an audit.” The Contracting Officer also admitted that the decision was delayed because of the late realization that an audit was mandatory. Under these circumstances, the Board held that it would normally not grant the Contracting Officer additional time. However, in this case the Board noted that the Contracting Officer’s promise to issue a decision by January 20, 2017 was only a few weeks away, and as such, would not result in undue delay. Plus, the audit would “benefit Hawk, the Government, and any tribunal asked to review Hawk’s claim.”
This case provides a concise explanation of the factors to consider when deciding whether to force the Government to issue a final decision. While the Contract Disputes Act requires a decision to be issued in 60 days, it allows for more time if the claim is complex. Unfortunately, the Government often times abuses this excuse when the real reason for the delay is lack of Government resources, or just plain laziness. If this happens, consider your right to file a petition at the Board to force an earlier decision.
Hawk Contracting Group, LLC v. Department of Veterans Affairs (December 2, 2016)
