Contract performance

   the government has no obligation pursuant to a requirements
   contract to issue delivery orders equal to the government's
   estimated quantities.... However, once issued, a contract for
   the work encompassed by a delivery order is formed, and a
   subsequent reduction in the scope of the work ordered constitutes
   a partial termination. (1474)

The board disagreed for two reasons. First, in most cases, Maggie's had agreed, through bilateral modifications to "adjust the amounts in the DO estimates" to the amounts actually mowed. (1475) Second, the contract's terms made clear that the DOs were in fact estimates subject to weekly scheduling and not "unconditional commitment[s]." (1476) Thus, the government's failure to order exactly the same amounts as in the DOs did not result in a constructive partial termination for convenience. (1477)

Lieutenant Colonel Michael Benjamin.

Contract Disputes Act (CDA) Litigation

Jurisdiction

If We Could Only Get to the Merits!

This year has given rise to a bumper-crop of court and board decisions involving jurisdictional and procedural issues. Though some may view this abundance as the welcomed result of aggressive lawyering, at least one prominent commentator has bemoaned the inability of the courts and boards to cut through the morass of procedural issues and get to the merits. (1478) Be that as it may, several decisions handed down this year warrant examination.

In England v. Swanson Group (Swanson) (1479) the CAFC held it lacked jurisdiction over a contractor's appeal because the contractor's request for an extension for filing a settlement proposal was not a "claim" under the Contract Disputes Act (COA). (1480) In Swanson, the Navy awarded Swanson a guard services contract in 1991. In 1992, the Navy ordered Swanson to cure what the Navy perceived as Swanson's failure to comply with the contract terms. (1481) Shortly thereafter, the Navy terminated the contract for default. Swanson filed a timely appeal of the default to the ASBCA, whereupon the board ordered the Navy to convert the termination for default to a termination for convenience. (1482)

In accordance with the clause at FAR section 52.249-2(e), (1483) when the government terminates a contract for convenience, a contractor has one year to submit a termination for convenience settlement proposal. If a contractor fails to submit a proposal within that time, the contracting officer "may determine, on the basis of the information available, the amount, if any, due the Contractor." (1484) In the present case, Swanson did not submit a termination settlement within the one-year period, but prior to the expiration of the period, requested a one-year extension with the Navy. The Navy denied this request, and shortly after the end of the one-year period, unilaterally determined Swanson was entitled to $12,294.21 in termination settlement costs. Swanson appealed the Navy's decision, whereupon the ASBCA awarded Swanson $249,840.38 in costs over and above the $12,294.21 paid by the Navy. (1485)