A recent Armed Services Board of Contract Appeals decision provides useful guidance on when the government may (or may not) waive its defense that a contractor’s claim failed to state a sum certain. In GE Renewables US, LLC, the contractor had submitted a claim to the contracting officer for a determination that the contractor had the right to an economic price adjustment (EPA) due to an inflation-related price increase. Notably, the contractor did not provide the value of its requested adjustment in its claim. The contracting officer denied the claim, and the contractor appealed to the Board.
Continue Reading A Greater Sum of Certainty: ASBCA Weighs in on when Sum Certain Defense Is Not Waived
All Together Now: “Many Ways to Calculate Fee After a T4C”
A recent decision by the Armed Services Board of Contract Appeals (ASBCA) reinforces the FAR part 49 provisions governing terminations for convenience, which provide that contractors are entitled to fair compensation and that settlements for such terminations should not rigidly rely on cost and accounting data. In D-STAR Eng’g Corp., ASBCA Nos. 62075, 62780 (Apr. 28, 2025), the government had terminated the contractor’s cost-plus-fixed-fee research and development contract for convenience. Following the contractor’s submission of its termination settlement proposal (TSP), the government questioned certain costs claimed, disputed the fee owed to the contractor, determined it had overpaid the contractor, and issued a debt demand claim for disallowed costs. The contractor then submitted its own, affirmative claim incorporating its TSP and seeking additional costs and interest. The most interesting portion of the ASBCA’s decision is its discussion of the methods available to the parties to calculate the amount of fee to which the contractor was entitled following the termination for convenience, which we describe below. However, the ASBCA also addressed the allowability and allocability of various cost types that may be of interest, including termination settlement costs, direct labor, engineering overhead, and G&A.
Continue Reading All Together Now: “Many Ways to Calculate Fee After a T4C”So You’re Telling Me There’s a Chance:Contractor Recovers COVID-Related Quarantine Costs
In Chugach Federal Solutions, Inc., ASBCA Nos. 62712, et al., the Armed Services Board of Contract Appeals held that a contractor could recover its costs for having to quarantine personnel in accordance with government-imposed COVID safety requirements, because the underlying contract contemplated that the contractor would be compensated for complying with any changes to health and safety requirements.
Continue Reading So You’re Telling Me There’s a Chance:Contractor Recovers COVID-Related Quarantine CostsDoD Proposes To Amend the DFARS to Update TINA Requirements
On September 26, 2024, the Department of Defense (DoD) issued a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS), implementing requirements for contractors to submit cost and pricing data under Section 811(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018, Section 814 of the NDAA for FY 2021, and Section 804 of the NDAA for FY 2022, which updated the Truthful Cost or Pricing Data statute (formerly Truth in Negotiations Act (TINA) and still referred to as TINA).
Continue Reading DoD Proposes To Amend the DFARS to Update TINA RequirementsOMB Final Rule Rewrites the Uniform Guidance for Grants, Cooperative Agreements, and Other Federal Financial Assistance
On April 22, 2024, the Office of Management and Budget (OMB) issued a Final Rule significantly revising the Uniform Guidance for grants, cooperative agreements, and other federal financial assistance. The Final Rule (titled “OMB Guidance for Federal Financial Assistance”), and OMB’s accompanying memorandum to agencies and reference guide, state that the revisions aim to streamline and clarify the grant rules and improve management, transparency, and oversight of federal financial assistance. Agencies must implement the Final Rule by October 1, 2024; however, agencies may apply it to federal awards as early as June 21, 2024.
Continue Reading OMB Final Rule Rewrites the Uniform Guidance for Grants, Cooperative Agreements, and Other Federal Financial AssistanceWait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit Precedent
On remand from the U.S. Court of Appeals for the Federal Circuit, in ECC International Constructors, LLC, ASBCA Nos. 59586, 59643, the Armed Services Board of Contract Appeals concluded that, by waiting until after a hearing on the merits and six years after the appeal was filed, the government forfeited its right to challenge the contractor’s satisfaction of the FAR’s sum-certain requirement for Contract Disputes Act claims.
Continue Reading Wait Too Long and You Might Miss Sum-Thing: ASBCA Again Underscores that Failure to Timely Raise Sum-Certain Defense Can Result in Forfeiture Under New Federal Circuit PrecedentLet’s Talk FCA
Cost Accounting and the False Claims Act
In this episode, Jason Crawford, Agustin Orozco, and Erin Rankin look back at one of the more noteworthy settlements of 2023—the $377M settlement by Booz Allen Hamilton to resolve allegations arising out of the company’s purported non-compliance with Cost Accounting Standards. “Let’s Talk FCA” is Crowell & Moring’s
ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward
On December 20, 2023, the Armed Services Board of Contract Appeals (Board) denied the government’s motion to dismiss a prime contractor’s pandemic-related claims filed on behalf of its subcontractors. The Board rejected the government’s arguments that the claims failed to state any claims for relief that could be granted, were barred by the affirmative defense of sovereign acts, and failed to provide separate sums certain for purported sub-claims.
Continue Reading ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move ForwardFastest 5 Minutes Special Edition: New DOD Rules
This special edition of the Fastest 5 Minutes podcast covers new rules issued last week by the Department of Defense that implement various requirements of recent National Defense Authorization Acts, including a new rule that imposes additional requirements for contractors to provide cost or pricing data to the government, and is hosted by Peter Eyre