The Armed Services Board of Contract Appeals (ASBCA) is a neutral, independent forum whose primary function is to hear and decide post-award contract disputes between government contractors and the Department of Defense and other government agencies with whom the ASBCA has entered into agreements to provide services.
The majority of matters on the ASBCA's docket involve appeals by contractors from government contracting officers' final decisions or failures to issue decisions.
An appeal will be processed pursuant to the ASBCA's Rules. The Rules allow a contractor to represent itself without a lawyer and the rules have provisions for the accelerated processing of small dollar amount claims, which can be as much as $150,000 in the case of a qualifying small business.
Most hearings, if required, will be held by a single Administrative Judge, either at the ASBCA s offices in Falls Church, Virginia, or, if appropriate, in a location more convenient to the parties.
Most decisions are made by a panel of three Judges, as
the ASBCA functions in a collegial manner.
The ASBCA has sample ADR forms available online for
If there is any doubt about the government s intent when a patent ambiguity is discovered, the contractor must obtain a complete clarification. It is not sufficient for a contractor to furnish mere notice;
Failure to obtain such a clarification renders, or may render, the contractor s interpretation of the ambiguity at variance with that of the government and potentially lead to a claim or a default termination.
The U.S. Army issued a solicitation on June 22, 2006 for 100,000 pounds of potassium chlorate that was scheduled for delivery 90 days after the date of award of a contract to Pine Bluff Arsenal by November 1, 2006.
One month later the contractor Mil-Spec Industries Corp. ( Mil-Spec ) submitted an offer for $94,400, or $0.944/lb, and accepted the terms of the RFP.
They did not take exception to the delivery schedule.
On December 7, 2006, the Army awarded the contract to a
The contractor requested a 90 day extension that was denied by the Army.
The contractor appealed the default termination to the Armed Services Board of Contract Appeals ( ASBCA or the Board ) and the decision is listed as ASBCA No. 56070 dated August 6, 2017 .
The initial question was:
Does the plain language of the contract support only
one reading or support more than one reading
Patent ambiguity is so glaring as to raise a
duty to inquire.
The ASBCA averred that The contractor was unconcerned about the discrepancy between the 1 November 2006 delivery date, and 90 days after date of award and the February 13, 2007 delivery date.
The Board held the contract was valid and that The
contractor failed to resolve the discrepancy or ambiguity.
The moral of the story is never leave a patent ambiguity
unattended. Always resolve an ambiguity (discrepancy) promptly. This may
be easier said than done, but some way must be found. The consequences
of failure to resolve the ambiguity can be substantial. Any contract
award that contains an ambiguity may be terminated for default.
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