Can contractors force a written decision on a claim?
Editor's Note: The following is a guest contribution from Bruce Jervis, editor of Construction Claims Advisor.
For a contractor with a claim on a federal construction project, an essential occurrence is a "final decision" by the government contracting officer. Ideally, this is a formal written response addressing the merits of the claim. But if the contracting officer declines to respond within 60 days, it becomes a "deemed denial" of the claim. A final decision, formal or deemed, is a jurisdictional prerequisite to the contractor's right to appeal.
Contractors would obviously prefer a government agency to go on the record with a response to a claim. The Contract Disputes Act allows a contractor to petition a board of contract appeals "to direct a contracting officer to issue a decision in a specified period of time." Does this empower contractors to force a written claim decision by the government? Unfortunately, that question was recently answered in the negative.
The Contract Disputes Act allows a contracting officer to take, within the 60-day period, additional time within which to issue a final decision. A contractor may petition a board to shorten the extension the contracting officer has granted himself. But a contracting officer is entitled to render no timely final decision, forcing the contractor to appeal the "deemed denial" of its claim.
This seems unfair. A contracting officer can sit on his or her hands indefinitely, reviewing and considering the claim but stating no government position on the merits of the claim. Only during the appeal process is the government required to take a position. Not only is this one-sided, it certainly does not facilitate the negotiation and resolution of claims.