Government contractors must be prepared to perform their Federal contracts – even in the face of a dispute with the government over essential contract terms. Failing to perform can have devastating consequences, including default termination.
In a recent case before the Armed Services Board of Contract Appeals, the Board considered a U.S. Army Corps of Engineers’ contract for HVAC system upgrades. After the contract was awarded, the contractor promptly raised concerns over the Agency’s design. The Agency acknowledged the disagreement, but directed the contractor to complete the project as originally intended.
The dispute did not end there.
Rather than accept the government’s decision and complete the project, the contractor continued to lobby the Agency to consider a re-design. The Agency again refused – and matters only got worse. The Agency and the contractor repeatedly butted heads over seemingly simple issues, such as the format of project submittals. Finally, after issuing multiple Notices to Cure and receiving no response from the contractor, the Agency cut bait default terminated the contractor.
The contractor appealed the determination, arguing that the problems on the project were all caused by the Agency’s design errors – as well as the Agency’s failure to acknowledge and resolve those errors. These arguments did not persuade the Board and the appeal was denied.
The Board’s decision includes some fairly detailed analysis concerning the competency of the Agency’s decision making. Was the design defective? Did the Agency wrongfully refuse to consider the contractors proposed alternatives? The Board answered all of these questions in the negative.
In my opinion, however, the far more important aspect of the Board’s decision stays out of these technical weeds. The Board explained that the contractor’s failure to continue the work during the contract dispute justified the default termination.
While the Board hinted that the contractor’s failure to perform could have been deemed “excusable” under the right set of facts, that would not be my advice. Experience shows that government contractors very rarely come out on the winning end of a dispute when they refuse to perform.
Consider the options:
- On one hand, a contractor that performs during a dispute has a better chance of completing a job with a satisfied customer. And any issues of excess costs or delays resulting from the dispute can be taken up as part of a claim or REA – so a contractor that continues to perform is not releasing the ability to recover later if the government really is responsible (just be sure to read that bilateral modification or final payment form before you sign it).
- On the other hand, a contractor that refuses to perform knows that its work is not getting done and that its customer is unhappy. While it may ultimately prevail, will that victory be worth the damaged relationship?
Against this backdrop, government contractors should also consider the power of the performance evaluation. A contractor that works through a dispute is far more likely to get the passing marks (or even flying colors) that will help in future past performance evaluations. Can the same be said for the refusing contractor? Performance ratings matter – and they tend to stick with your business – particularly when a default termination is part of the equation.
Timing and circumstances matter. Sometimes a conflict presents an obstacle to performance so great that it cannot be overcome. My experience shows that should be the exception to the rule. Whenever possible, government contractors should perform through a contract dispute and simultaneously position themselves to recover those costs/time later down the line.