A recent decision by the Armed Services Board of Contract Appeals found the Navy liable to a commercial crane manufacturer for delay damages. In Konecranes Nuclear Equip. & Servs., LLC, ASBCA No. 62797, 2024 WL 2698011 (May 7, 2024), the Board reiterated the age-old lesson—you have to read the contract—and provided guidance about how to calculate the delay damages. Beyond that, the Board found apparent inspiration for part of its holding in an unlikely source: a classic song by the Rolling Stones.Continue Reading You Can’t Always Get What You Want: ASBCA Channels Rolling Stones and Awards Contractor $4.9 Million in Delay Damages
Evan R. Sherwood
Evan Sherwood counsels federal contractors on Contract Disputes Act (CDA) claims, the cost accounting standards (CAS), cost allowability, requests for equitable adjustment (REAs), contract terminations for convenience / default, and related audits, litigations, and investigations. He also advises on contract compliance and formation issues, including TINA / defective pricing, data rights, mandatory disclosure rules, ethics, conflicts of interest, teaming arrangements, and other transaction agreements (OTAs). He has litigated matters before the Court of Federal Claims, the Armed Services Board of Contract Appeals, and the Government Accountability Office. Evan was partially seconded to Northrop Grumman from 2019 to 2022 as business unit counsel.
In his work for defense and civilian agency contractors, Evan:
- Prepares CDA claims and REAs;
- Litigates and counsels on matters involving CAS compliance, cost accounting practice changes, and cost allowability under the FAR and agency supplements;
- Defends contractors during audits and investigations involving the Defense Contract Audit Agency (DCAA), Defense Contract Management Agency (DCMA), and the Office of the Inspector General (OIG);
- Advises on constructive changes, work delays, defective specifications, stop-work orders, government-furnished property, CPARS, warranty matters, data rights, and quality controls;
- Counsels on disputes between primes and subcontractors, including teaming disputes;
- Conducts internal investigations and defends clients in federal investigations involving whistleblower allegations and retaliation claims.
Evan is a Vice Chair of the ABA Public Contract Law Section’s Contract Claims & Disputes Resolution Committee. He routinely writes and speaks about legal issues in federal contracting.
Congress Offers Greater Hope for Defense Contractors Battling Inflation; Actual Relief Is Still Not Clear
As part of the FY23 National Defense Authorization Act (“NDAA”), Congress has given the Department of Defense authority to pay defense contractors for increased costs due to inflation. Section 822 of the NDAA amends Public Law 85-804 (50 U.S.C. 1431) to allow contractors to apply for adjustments, while also giving the DoD wide discretion to grant or deny requests. President Biden is expected to sign the FY23 NDAA soon, and Section 822 has the potential to be welcome news for contractors who have been battling inflation under multi-year, fixed-price contracts.
As readers of this blog know from prior posts, DoD has issued position papers over the last year that attempt to address inflation with existing legal tools, but as a practical matter, the Department has provided few options for contractors impacted by rising costs. The new NDAA provision could finally provide DoD with the legal support it needs to aid contractors struggling with inflation. However, many questions remain about how this law will work and whether it will actually meet the growing needs of the defense industrial base. In particular, Congress has not yet appropriated money to fund applications for relief, and DoD must prepare guidance for implementing the statute. Both of these things will need to happen before contractors can apply for and potentially receive inflation-based price adjustments under this amended Public Law 85-804 authority.
This post discusses the amendment and analyzes the hurdles that remain between defense contractors and inflationary relief.Continue Reading Congress Offers Greater Hope for Defense Contractors Battling Inflation; Actual Relief Is Still Not Clear
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The Court acknowledged that contractors may retain ownership and other interests in unlimited rights data,
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“Hey Big Spender . . .”: GAO Reiterates That Agencies Must Meaningfully Consider Price In Best Value Tradeoffs
In three related bid protest decisions made public last week, the Government Accountability Office (“GAO”) reaffirmed the principle that agencies must meaningfully consider price when making best value tradeoff decisions. GAO sustained the protests, stressing that merely paying lip service to price while selecting a more expensive, higher-rated offeror is…
Continue Reading “Hey Big Spender . . .”: GAO Reiterates That Agencies Must Meaningfully Consider Price In Best Value Tradeoffs