Government typically has no obligation to assist the contractor in completing work before the contract completion date. Despite this lack of obligation, it is still not permissible for the government to hinder or otherwise prevent a contractor’s early completion of performance. In this regard, when the contractor’s early completion of work is delayed due to government actions, the government may be liable for the delay it causes even when the contractor completes performance within the agreed-upon contract completion deadline. Contractors must satisfy three elements to establish entitlement to benefits of a planned early completion which is adversely impacted by government-caused delays. First, from the outset of the contract, the contractor must establish its intent to complete performance on an accelerated schedule and ahead of the contractually mandated completion date. Notably, while it is necessary for the contractor to convey its intent to complete early performance, it need not inform the government of a specific early completion date. Second, the contractor must have the capability to perform early, and its intent must be supported by consistent actions and performance activities during the performance period. Third, the contractor must establish that had it not been for the government-caused delays, its actions in pursuing acceleration would have led to an early completion. Once the three elements are established, the government is liable for damages arising from its dilatory actions that prevent the contractor’s early performance.

The government may sometimes unilaterally direct the contractor to perform additional work outside the scope of the changes clause of a government contract. Such an order for alterations is a cardinal change and amounts to a breach. In order to establish that a cardinal change has occurred, the contractor must show that the work ordered by the government, either explicitly or impliedly, was beyond the contract requirements and materially different from what the contract specified. To determine whether a cardinal change exists, claim adjudicative forums compare the total altered work with the work included in the contract. If the alterations in the work are out of character with the work contemplated in the contract or require a level of effort reasonably unforeseeable at the time of formation, a cardinal change has occurred. In other words, a cardinal change exists when the government requests a unilateral change that so drastically alters the work that the contractor must essentially perform duties that are materially different from those it originally bargained for. While facts and figures involving the number of days of delay and performance cost increases may be helpful in understanding the extent of the additional work, establishing whether a cardinal change has occurred involves a highly fact specific inquiry that must look beyond such numbers alone, into the contractor’s entire undertaking. Once established, a cardinal change is a breach of contract and accordingly has the effect of freeing the contractor from its contractual obligations.

The Buy American Act (BAA) generally requires federal agencies to procure only domestic end products when acquiring supplies and construction materials in government contracts over the micro-purchase threshold unless an exemption applies. In response to defense solicitations that incorporate the provision at Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7000, offerors must provide a certification as to whether their proposed products are domestic end products from the United States, foreign end products from a qualifying country, or foreign end products from a non-qualifying country. When an offeror certifies that it will furnish end products in accordance with the BAA, it undertakes a contractual obligation to comply with that representation. The procuring agency can typically rely upon an offeror’s certification of compliance without further investigation unless there is a reason to believe, before making an award, that the offeror will not provide compliant products. On the other hand, if prior to award, significant countervailing evidence creates doubts concerning the offeror’s ability to comply with the BAA requirements, the agency must investigate beyond the firm’s representation of compliance before making an award. Under its bid protest function, the Government Accountability Office (GAO) will review whether an agency reasonably relied on an offeror’s certification of compliance. Similarly, when the agency investigates beyond the offeror’s representation of compliance, the GAO will review the agency’s evaluation and the resulting country of origin determination under the BAA to ensure they were reasonable.

An offeror bidding on a federal contract set-aside for small businesses may challenge another offeror’s representation that it is a small business concern. Such size protests are referred to the Small Business Administration (SBA) area office where the challenged offeror is headquartered. The challenged concern must then establish that it is indeed a small business. Per SBA regulations, if the challenged concern fails to submit a completed SBA Form 355 regarding size determination information or otherwise does not adequately respond to requests for information or size protest allegations in a timely manner, it risks the SBA presuming that the disclosure of the requested information would demonstrate that the concern is other than small. In this regard, the SBA Office of Hearings and Appeals (OHA) has developed a three-factor test to determine whether an adverse inference is appropriate. First, the information the SBA area office seeks must be relevant to an issue in the size determination. Second, there must be a level of connection between the entity being protested and the entity the SBA area office is seeking information from. Third, the request for information by the area office must be specific. If the challenged concern does not provide the requested information and these three factors are met, the SBA may infer that the disclosure of the information would show that the concern is other than small.