Government Contracts REA Bore All Hallmarks of a Request for a Final Decision
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Monday, August 12, 2019

REA Bore All Hallmarks of a Request for a Final Decision

By Government Contracts Editorial Staff

A board’s dismissal of an appeal for lack of jurisdiction was reversed and remanded because the Court of Appeals for the Federal Circuit found the contractor’s submission constituted a request for a final decision by the contracting officer, and the CO’s denial of the submission was a final decision on a claim. The contractor requested additional compensation after its contract to provide transportation services in Afghanistan expired. After various preliminary submissions, the contractor submitted a document entitled “Request for Equitable Adjustment” and a sworn statement seeking over $4 million in compensation. The CO denied the request, characterizing the denial as the “[g]overnment’s final determination in the matter.” The contractor appealed, but the Armed Services Board of Contract Appeals concluded it did not have jurisdiction because, “in six years of communication with the [government],” the contractor never requested a CO’s final decision (18-1 BCA ¶37,039).

Substance over Form. The court rejected the three grounds on which the government relied to argue the submission did not constitute a request for a final decision. The fact the submission was styled as an REA, and the contractor’s request that the document “be treated as an REA,” were not determinative under the court’s decision in Reflectone, Inc. v. Dalton (40 CCF ¶76,803) and subsequent cases finding an REA could satisfy all Contract Disputes Act requirements for a claim. In addition, the submission bore “all of the hallmarks of a request for a final decision on a claim,” and it did not have to include specific language requesting a final decision (see 54 CCF ¶79,360). The submission requested the CO provide specific amounts of compensation for each of the alleged grounds, and the sworn statement asserted to the truth of the submission, included detailed factual bases for the contractor’s alleged losses, and claimed a sum certain based on those losses. Finally, although the contractor had submitted a similar, but unsworn, document more than one year earlier, and indicated an intent to later file a certified formal claim, the later submission provided the necessary certification and had a formality lacking in the earlier submissions, and the CO originally treated the denial of the REA as a “final determination.” The board also found the submission did not contain a proper certification, and although it was unclear how the certification was inadequate, any defect was correctable. (Hejran Hejrat Co. v. U.S. Army Corps of Engineers, CA-FC, 63 CCF ¶81,703)

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