Disagree with Your Contracting Officer? Your Alternatives Explored

Disputes between federal government contractors and contracting officers are widespread in the complex world of government procurement. The resolution of these disagreements is critical for maintaining a positive working relationship and enabling the seamless execution of contracts. Dispute resolution often consists of multiple processes, beginning with negotiation and progressing to alternative dispute resolution (ADR) and litigation, if necessary.

Negotiation is crucial to settling workplace problems. The Federal Acquisition Regulation (FAR) 33.204 highlights the government's policy of resolving all contractual problems in dispute by mutual agreement at the contracting officer level. This means that reasonable efforts should be made to address disputes prior to submitting a claim. Contracting officers have broad ability to settle disputes, as stated in FAR 33.210, which provides that they are permitted to decide or resolve all claims arising from or connected to a contract subject to the Disputes law. The contracting officer even has authority to settle claims for rescission (cancelation of contract) or reformation because of mistake.

In practice, most government contracts include phrases such as Changes, Differing Site Conditions, and Government Property, which guarantee a fair price adjustment when certain occurrences occur. To resolve issues under these articles, the contractor must file a well-documented request for equitable adjustment (REA) with the contracting officer. This necessitates a precise summary of the facts and a detailed presentation of the expenditures incurred as a result of the incident covered by the clause. Once the contracting officer has thoroughly examined the REA and gotten any necessary audit or field pricing help, the parties should participate in negotiations to establish an agreement.

If negotiation fails to resolve the problem, the parties may consider using alternative dispute resolution (ADR) procedures. FAR 33.214 highlights the key aspects of ADR, which include the existence of a disputed matter, both parties' voluntary election to participate, agreement on alternative processes and terms, and participation by officials with jurisdiction to address the issue. ADR procedures may be employed at any point during the processing of a request for equitable adjustment or the assertion of a Contract Disputes Act (CDA) claim.

While mediation and arbitration are the two most popular methods of ADR used in government contracts, the Administrative Dispute Resolution Act (ADRA), 5 U.S.C. § 571 et seq., lists the types of ADR as – “conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof.”

Creative contractors may explore using ombuds for specific issues, if accessible, to assist in resolving a dispute with a contracting officer. Conciliation and facilitation may be more creative ways than mediation, which involves the use of a neutral third party to help negotiate a solution, or arbitration, which is a binding award rendered by a neutral arbiter(s).

Finally, if ADR fails to produce a resolution, litigation may be the last option. The Contract Disputes Act requires a contractor to submit a claim with the contracting officer and obtain a final determination before moving to litigation. The contractor can then file an appeal with either the appropriate Board of Contract Appeals or the Court of Federal Claims. For smaller claims, the appeals boards provide expedited and accelerated procedures, although larger matters may require full discovery and trial.

To summarize, settling conflicts with federal government contracting officers necessitates an organized approach that begins with negotiation and progresses to ADR and litigation if required. Contractors should arrive well-prepared, with a thorough understanding of the relevant contract articles, a well-documented REA, and a willingness to engage in good faith negotiations. Contractors that follow these procedures can traverse the complexity of dispute resolution in government contracting and reach a mutually satisfying conclusion.

———————————————————

As a federal government contractor, disagreeing with your contracting officer might be difficult, but there are systematic steps you can take to address the conflict. Here are some important actions to consider:

Maintain open lines. Throughout the process, do your best to maintain open contact with the contracting officer and other relevant parties.

Document Interactions: Always maintain track of all conversations and choices made during the resolution process.

Preventative Actions: To reduce future disagreements, assess your contract management processes and maintain clear communication and documentation throughout the contract's lifecycle.

• We can help. We have extensive contract management experience and recommend outsourcing contract management services. Interested? Please read our article on outsourcing contract management.

• Or, consider our 1:1 coaching services.

Seek legal advice. Consider hiring an attorney who specializes in government contracts to help you navigate the dispute resolution procedure.

If negotiation fails: If negotiation does not address the issue, consider alternative options such as facilitation or an agency ombudsperson, as long as the contracting officer agrees to the techniques.  If the contracting officer refuses, consider pushing the issue within the appropriate agency.  If this fails, think about more formal ADR and/or litigation.