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Contract Claims

While performing on government contracts, contractors often face unexpected increases in costs, performance timelines, and other issues requiring them to file requests for equitable adjustments and claims against the federal government. TILLIT LAW clients receive dependable counsel spanning the entire contract claims lifecycle under the Contract Disputes Act, including the initial development of REAs and claims. Fully understanding that claims litigation is an expensive and time-consuming process, the firm provides zealous representation of client interests in any negotiations with the government regarding their claims.

When clients are unable to obtain the desired outcomes for their claims in proceedings before the contracting officer, Sareesh helps them navigate the procedural and substantive complexities of claims litigation at the relevant Board of Contract Appeals. The firm's focus on contract claims and performance issues ensures that clients can confidently seek counsel on a wide range of matters, including but not limited to:

  • Breach of Contract & Administration Issues
  • Changes & Modifications
  • Convenience & Default Terminations
  • Delays

  • Pricing of Adjustments
  • Warranties & Inspections

Contractors serve as valuable partners to the federal government so it can achieve its contractual objectives. Sareesh understands that his clients take this important role seriously. The firm similarly strives to be a trusted long-term legal partner to its clients performing on federal contracts. With the firm’s focus on developing and maintaining long-term relationships with its clients, contractors can confidently turn to TILLIT LAW, knowing that they will receive consistently reliable federal contracts counsel to help resolve their claims.

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Featured Insights

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The federal government has the right to unilaterally terminate contracts when it is in the government’s interest to do so. In the event of a termination for convenience, the contractor may typically submit its termination settlement proposal within a year of the termination. Since the contractor submits the settlement proposal primarily for negotiation purposes, it is not considered a claim under the Contract Disputes Act (CDA) when it is first submitted to the contracting officer (CO). Stated another way, the termination settlement proposal is considered an instrument of negotiation rather than a non-routine request for payment or a request for the CO’s final decision. For this reason, the costs of preparing a termination settlement proposal are also generally considered allowable. However, if the termination settlement proposal otherwise meets the requirements of a claim, it can be converted into a CDA claim if the parties’ negotiations reach an “impasse” and the contractor demands that the CO issue a final decision. In this context, an impasse means a deadlock or a point where a resolution through continued negotiations is unlikely when viewed from the perspective of an objective, third-party observer. Notably, whether the parties’ negotiations have reached an impasse is a question of fact, to be determined on a case-by-case basis.

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While the Contract Disputes Act (CDA) does not define a claim, the Federal Acquisition Regulation (FAR) § 2.101 defines a monetary claim as a written demand or assertion by a contracting party seeking, as a matter of right, the payment of money in a “sum certain.” Since the sum certain requirement is not included in the CDA, the Federal Circuit has held that the requirement is non-jurisdictional. Stated another way, a CDA claim does not need to include a sum certain for the Court of Federal Claims (COFC) or a relevant Board of Contract Appeals to exercise jurisdiction over it. Instead, the sum certain requirement is considered an element of a claim for relief that the contractor must satisfy in order to recover. The distinction is important because parties may raise a motion challenging the Court’s or the Board’s jurisdiction at any time. Meanwhile, if a party presents a defense based on the sum certain requirement after litigation has far progressed, it may be deemed to have forfeited the defense entirely. Therefore, the sum certain requirement is a mandatory but non-jurisdictional claim processing rule that is subject to forfeiture. It is somewhat unclear exactly when the claims litigation progresses to a point where a party loses the right to challenge a deficient sum certain. However, the Federal Circuit has indicated that forfeiture may apply as soon as the merits of the case are evaluated, including after the summary judgment stage.

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Contractors may sometimes encounter unforeseen conditions that make a government contract commercially impracticable because performance would cause extreme and unreasonable difficulty, expense, injury, or loss. Unless the contractor has assumed the risk of the unforeseen condition, a finding of commercial impracticability excuses the contractor from performing. In other situations, commercial impracticability may be treated as a constructive change, warranting an equitable adjustment due to the substantial, unforeseen costs imposed upon the contractor. Whether the performance of a contract would be commercially impracticable is a question of fact to be resolved on a case-by-case basis. Therefore, adjudicative forums have consistently declined to adopt a bright-line rule providing that a certain percentage of cost overrun automatically constitutes commercial impracticability. However, due to the potential for abuse, the standard for establishing commercial impracticability is challenging to meet, and contractors are not entitled to relief merely because they are unable to sustain their profit margins.

In Armed Services Board of Contract Appeals (ASBCA) No. 63615, a decision issued on May 19, 2025, the Board granted the agency summary judgment on the issue of commercial impracticability when the contractor suffered a 37% cost overrun on a construction contract. The U.S. Army Corps of Engineers (USACE) issued the underlying contract for construction work at Placement Area No. 10 in the Corpus Christi Ship Channel. The total adjusted contract price following all modifications was $11,046,369.04. During performance, the contractor encountered excessive erosion on the south side of the placement area. Subsequently, the work to address the erosion was added to the contract via two bilateral contract modifications addressing the inland and shoreline sides of the placement area, totaling $909,332.04. However, even after the modifications, the contractor continued to incur costs and expend additional resources. A year after the contract was deemed substantially complete, the contractor submitted certified claims asserting entitlement to roughly $3,560,723.65 in cost overruns for work associated with the first modification and $447,522.64 in cost overruns for the second modification. These claims were denied by the contracting officer (CO) in their entirety.

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