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”
Contractor Business Systems: Out With the Old, In With the New (Terminology)
On January 17, 2025, the Department of Defense (DoD) issued a final rule replacing the term “significant deficiency” in the Defense Federal Acquisition Regulation Supplement (DFARS) with the term “material weakness” for use in reviews of contractor business systems. Effective immediately, a material weakness is defined as “a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis. A reasonable possibility exists when the likelihood of an event occurring is probable or more than remote but less than likely.” Continue Reading Contractor Business Systems: Out With the Old, In With the New (Terminology)
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 Costs
DoD 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 Requirements
Third Time’s A Charm? Federal Circuit Once Again Sends CAS Dispute Back to the Court of Federal Claims
The U.S. Court of Appeals for the Federal Circuit has confirmed that the Court of Federal Claims (COFC) has jurisdiction to decide whether contractors may offset cost impacts from multiple, simultaneous cost accounting changes when some changes increase costs to the Government, and other changes decrease costs to the Government.Continue Reading Third Time’s A Charm? Federal Circuit Once Again Sends CAS Dispute Back to the Court of Federal Claims
Taking Care of Business (Systems): DoD Proposes to Change the Definition of a Business System Deficiency
The Department of Defense (DoD) recently announced that it seeks public comments on a proposed change to the contractor business systems regime. The proposed rule would amend the Defense Federal Acquisition Regulation Supplement (DFARS) by replacing the phrase “significant deficiency” with the new defined term “material weakness,” to mean “a deficiency or combination of deficiencies in the internal control over information in contractor business systems, such that there is a reasonable possibility that a material misstatement of such information will not be prevented, or detected and corrected, on a timely basis.” In addition, the term would provide that a “reasonable possibility exists when the likelihood of an event occurring is— (1) Probable; or (2) More than remote but less than likely.” Continue Reading Taking Care of Business (Systems): DoD Proposes to Change the Definition of a Business System Deficiency
At Long Last: CAS Board Seeks Input Regarding CAS Coverage of Indefinite Value Contract Vehicles
The Cost Accounting Standards Board (CASB) recently announced that it seeks public comments on “whether and how” to amend the rules to clarify whether the CAS apply to indefinite value contract vehicles (or IDVs, otherwise known as indefinite-delivery / indefinite-quantity, or IDIQ, contracts). Comments are due no later than August 19, 2024. The full text of the notice is available here. The CASB also published a paper discussing six possible approaches and the criteria it will use to evaluate those approaches, but welcomed the public to identify alternatives for the CASB to consider. Continue Reading At Long Last: CAS Board Seeks Input Regarding CAS Coverage of Indefinite Value Contract Vehicles
Government Contracts
It All Adds Up
Nicole Owren-Wiest and Erin Rankin continue their discussion of TINA. In this episode, they dive into the definition of cost or pricing data. Spoiler alert: the devil’s in the details. “It All Adds Up” is Crowell & Moring’s podcast covering the latest government contract accounting, cost, and pricing developments.
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It All Adds Up
Cards Face Up
Nicole Owren-Wiest and Erin Rankin talk TINA. What is the Truthful Cost or Pricing Data Act, formerly known as the Truth in Negotiations Act? When are contractors and subcontractors required to provide certified cost or pricing data? And what does Nicole’s Cookie Monster coffee mug have to do with it?
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