In case of contract disputes, contractors must typically carry the burden of proof to establish the excusability of delays in performance of government contracts. This burden of proof must be carried by meeting the preponderance of the evidence standard. That is, contractors must generally show that it was more likely than not that the government was responsible for the performance delays. Depending on the terms of the contract and the circumstances surrounding the delay, contractors may need to rely on various types of evidence to achieve this. While the burden of proof may be relatively low, proving excusability of delays may nevertheless be challenging in the absence of properly documented evidence. For instance, the government may be in control of some of the evidence necessary to establish excusability, or there may be concurrent events contributing to delays in performance. Such scenarios may require contractors to produce different types of evidence, which may complicate their path to recovery. Therefore, contractors attempting to prove excusable delays must document, maintain, and produce detailed records demonstrating the government’s share of responsibility for the delay in performance.

When reviewing an agency’s procurement actions, adjudicative forums such as the Government Accountability Office (GAO) typically consider various materials and information in the record. Such materials may include arguments the agency and contractor raised during litigation, explanations of decisions and events advanced during the procurement cycle, and any hearing testimony. When reviewing evidence to determine the reasonableness of the government’s procurement actions, the adjudicative forum will generally assign greater weight to contemporaneous materials than post hoc arguments or analyses. This is because the judgments made in the heat of an adversarial process do not always represent the fair and considered judgment of the agency. Therefore, while adjudicative forums will consider explanations provided by agency counsel that merely fill in previously unrecorded details, post hoc rationalizations are typically deemed less persuasive. For instance, in resolving bid protests, the GAO has explained that it accords greater weight to contemporaneous materials, which are far more indicative of whether the agency conducted a rational evaluation and source selection process.

In B-422162; B-422162.2; B-422162.3, a bid protest decision issued on February 1, 2024, the GAO applied this principle in sustaining the protestor’s challenge to the government’s cost realism evaluation. The United States Army Corps of Engineers (USACE) awarded the contract at issue for environmental remediation services at the Durham Manufacturing Company superfund site in Connecticut. The cost-plus-fixed-fee contract was awarded on a best-value tradeoff basis where the non-price factors, when combined, were approximately equal to cost. Notably, the solicitation provided that the government would evaluate proposed costs for realism and, if needed, adjust an offeror’s unrealistically low proposed costs to a most probable cost (MPC) calculated solely for evaluation purposes. Among other contentions, the protestor alleged that USACE made unreasonable upward adjustments to the proposed rates for two labor positions. Specifically, USACE evaluators found the protestors’ rates for the quality control (QC) manager and site safety and health officer (SSHO) position to be unrealistically low when compared to the independent government estimate (IGE). However, instead of upwardly adjusting the protestor’s QC manager and SSHO rates to the IGE rates for these positions, the evaluators adjusted these rates to the protestor’s proposed rate for the superintendent position. The evaluators also failed to contemporaneously record their rationale for this adjustment.

The Contract Disputes Act, codified at 41 U.S.C. §§ 7101-7109, requires that a contract claim filed under the Act relate to a contract with the government. Adjudicative forums that resolve appeals challenging the contracting officer’s (CO) final decision in such claims, including Boards of Contract Appeals and Federal Courts, have consistently ruled that the phrase “relating to a contract” should be read broadly. Therefore, for a claim to be related to a contract for the purposes of CDA jurisdiction, the claim must have some relationship to the terms or performance of an underlying government contract. Despite this broad categorization, it may not always be apparent whether a claim sufficiently relates to a particular government contract to fall under CDA jurisdiction. In such situations, contractors should be aware that if they can demonstrate that their claim bears some relation to the contract, they stand a good chance of properly bringing their claim under the CDA.

On January 11, 2024, the Armed Services Board of Contract Appeals (ASBCA) issued an opinion in ASBCA No. 63634, denying the Air Force’s motion to dismiss, and exercising jurisdiction over an appeal arising from a claim pursuant to § 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The contractor was performing on a government contract to operate, maintain, support, and upgrade the training systems for the Air Force’s B-52 bomber aircraft. Among the relief sought in the claim, the contractor requested compensation in the form of equitable adjustment for increased costs to keep its workforce in a ready state during the COVID-19 pandemic. However, the CO denied that portion of the contractor’s claim. During the subsequent ASBCA appeal, the government again moved to dismiss the contractor’s § 3610 claims, asserting that the ASBCA did not have subject matter jurisdiction to resolve claims under the CARES Act. The government analogized § 3610 of the CARES Act to Public Law 85-804, which provides government agencies broad discretionary authority to modify government contracts but does not give the Board authority to entertain appeals from the government’s adverse decisions.

When interpreting terms of a federal contract, dispute adjudicative forums may turn to extrinsic evidence of trade practice and custom to resolve ambiguities. Trade usage refers to the use of terms or language with such regularity in a particular vocation, location, or industry that a contracting party is justified in its expectation that their technical meaning will be observed with respect to the contract. The use of trade practice and custom evidence as an interpretive device is not typically available when contractual language is plain and unambiguous on its face. However, under certain conditions, such as when a term has an accepted industry meaning different from its ordinary meaning, it may be appropriate for the dispute adjudicative forum to turn to evidence of trade practice and custom even when the contractual language is seemingly unambiguous. In such situations, the party introducing the evidence must demonstrate that it reasonably relied upon the accepted industry meaning as opposed to the ordinary meaning at the time of contract formation. In other words, the party presenting the evidence must show that the trade practice or custom genuinely reflected its intent when entering the contract, rather than serving as a post hoc rationalization for its actions.