Appeal of Contracting Officer Final Decision Litigation
Malyszek & Malyszek was built on the premise of avoiding litigation with only resolving federal government contract disputes utilizing litigation as a last resort. Malyszek & Malyszek firmly believes that the contractor has many avenues available to remedy a situation short of litigation. However, when litigation is necessary, Malyszek & Malyszek will take the matter to ultimate resolution. We believe in producing equitable results for the contractor, and if that means establishing new precedent in the attempt to find a fair and just resolution for both the contractor and the government, then we believe it only prudent to attempt to do so.
Bid Protests are not only very time intensive but also timeliness is mandatory. Malyszek & Malyszek assists a contractor in determining if there is a legitimate issue to pursue for a bid protest. In addition to protest related requirements, a company must determine if a protest makes economic, business and contractual sense for their company.
If you protest a solicitation or bid, it is essential to make a timely protest to stay the contract award. What issues can be protested ? How successful will your protest be?
During the solicitation process, or after award, a contractor may have reason to believe that a contract has been or is about to be awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract. It is essential to have a timely recognition of protestable issues. Depending on what forum the contractor selects, a timely protest will invoke an automatic stay until a protest decision is determined. It is important to know what Bid Protest issues and jurisdiction is specific to each forum. The need for a stay, the timeliness in filing a protest, the need for protective orders, the outcome desired are all considerations in choosing the correct forum in which to protest.
An Appeal is taken when there is a negative decision from a contracting officer on a claim or Request for Equitable Adjustment for changed work, added work, defective specifications, delays to contract performance, or a plethora of other reasons.
An appeal may also be pursued when there is an improper termination for default or an issue with a termination for convenience cost claim.
If a Contractor decides that it wishes to appeal a Contracting Officer's Final Decision, it is then necessary to appeal within the time constraints, and to make a decision as to what forum is more beneficial to the Contractor, be it an to the appropriate Board of Contract Appeals, the proper federal district court, or the U.S. Court of Federal Claims. There is a broad spectrum of issues that can be appealed. The appeal process must be managed in an efficient manner to make the Contractor whole, and to maintain a good working relationship with the Government in order to continue contracting with the Government in the future.
An appeal is made pursuant to FAR regulations, which states that a Claim by or against a contractor that cannot be satisfied or settled by mutual agreement requires that the Contracting Officer render a final decision on the claim. If this final decision is not acceptable to the Contractor, then the Contractor may appeal this decision to the appropriate agency Board of Contract Appeals. In order to be timely, a Contractor must appeal within 90 days to the agency board of contract appeals. Depending on the amount of the claim, a contractor may elect to proceed under the Board's Small Claim Procedure, or its accelerated procedure.
A Contractor may elect to proceed directly in the United States Court of Federal Claims (pursuant to the Contract Disputes Act of 1978) within 12 months of the date of the Final Decision.
A prime contractor can sponsor a subcontractor's appeal if the prime contractor may be liable to the subcontractor for the amounts it claims. Ordinarily, sponsored subcontractor appeals are pursued in the name of the prime contractor. However, a timely appeal filed in the name of the subcontractor may be sufficient to establish jurisdiction as long as the prime contractor's sponsorship can be shown.
Sample of successful actions brought by Malyszek & Malyszek:
SBA Bid Protest disputing 8(a) status and size determination of awardee resulting in cancellation of award and a re-bid
Bid Protest on Best Value to Government resulting in a compromise with the Government awarding a portion of the contract to protestor
Pre-Award Bid Protest granted based on Superior Knowledge of the Government
Reversal of Improper Default Terminations into a Termination for Convenience with Costs
Reversal of a negative Past Performance Evaluation on behalf of the contractor based on non-contractual governmental actions by the agency
Reversal of Contracting Officer decision not to award final option year on a multi-year contract based on abuse of discretion
Bid Protest of award of follow-on contract to another contractor without notice to incumbent
Intervenor action in a bid protest to protect the rights of the contract awardee
Backup Federal Contract research and expertise in FBI Whistleblower action
Numerous Appeals before the Boards of Contract Appeals and Court of Federal Claims from final officer final decisions rejecting contractor claims and REAs for constructive changes and added scope work
Litigation for a contractor that forced a large Defense Contractor into a merger with another large contractor in a multi-million dollar settlement
WE CHALLENGE YOU TO PRESENT US WITH A GOVERNMENT CONTRACT QUESTION, ISSUE OR PROBLEM THAT WE CANNOT ANSWER OR RESOLVE.
Malyszek & Malyszek has offices in Washington, D.C. and in Los Angeles, California and Services clients Nationwide and Abroad in all Federal Government Contract Matters and Proceedings
