News/Resources: Blog

Brown Rudnick BLOGS

Welcome to Brown Rudnick’s blog page.  Below you will find our Emerging Technologies and Government Contracts blogs.  To read our Real Estate blog, Get Real! Keeping Real Estate Professionals Ahead, please visit www.getrealestatelawblog.com.

The views expressed herein are solely the views of the author(s) and do not represent the views of parties represented by the blogger(s) or the views of Brown Rudnick LLP or parties it represents.

Mobile App Privacy: Five Things Businesses Can Do To Stay Out Of Trouble

Posted on Friday, Dec 21, 2012

BY

The business case for offering a mobile app can be compelling: an app can give a business a constant presence on its customers’ mobile desktop, building brand awareness and allowing easy and direct interaction.  But businesses that roll out apps need to pay attention to privacy rules, too, as the recent enforcement action by California’s Attorney General reminds us.

view full post >

A New Wave Of GPL Enforcement? Samba and Linux kernel copyrightholders join the fight

Posted on Friday, Jun 29, 2012

BY

Talk about unintended consequences: Rob Landley, a lead developer of BusyBox, announced that he was rewriting that program solely to disarm GPL enforcers. In response, several other copyright holders came forward to hand the enforcers some bigger and more effective weapons.

view full post >

The CDA Requirement to Give Notice of the Amount of a Claim

Posted on Tuesday, Jul 26, 2016

BY and

Contractors with claims against their government customers sometimes feel stymied by the requirement in the Contract Disputes Act (CDA) that a claim state a “sum certain.” A contractor may know that it has a valid claim but may be unable to state the precise amount of that claim because the work is not yet done or insufficient data is available.

A recent decision of the Armed Services Board of Contract Appeals provides hope for those contractors. In that case, the government argued that the contractor’s claim should be dismissed because the contractor failed to provide “a mathematical basis for any portion of its $100,000 claim or [to] assign a specific dollar value to any component thereof.” The ASBCA disagreed, however, stating:

It is well-settled that neither the CDA nor its implementing regulations require submission of a detailed cost breakdown or other specific cost-related documentation with the claim. Instead, the contractor need only submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim. See Government Services Corp., ASBCA No. 60367 (June 20, 2016).

Of course, this does not permit a contractor to “wing-it.” A contractor submitting a claim must certify, among other things, that the claim is made in good faith, that the supporting data are accurate and complete to the best of the certifying person’s knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable. A mere estimate will not satisfy the contractor’s burden. And, a well-supported claim is more likely to be granted by the contracting officer or the board of contract appeals. Still, the ASBCA’s decision does ease the contractor’s burden to get its claim in the door.

While we’re on the subject of a “sum certain,” another issue that befuddles contractors is how to submit a claim when the changed work is not completed. Contractors could wait until the contract is over and all costs are known, but that might require the contractor to finance the extra work for several years. Fortunately, that is not necessary, as numerous decisions have held that a claim that includes a “sum certain” for work already performed and a good faith estimate or extrapolation for work remaining to be done satisfies the CDA’s requirements.

Finally, remember that a claim for “contract interpretation” also qualifies as a CDA claim. In many cases, submitting a claim for contract interpretation may help the contracting officer and appeals board focus on the real issue in dispute and avoid or at least delay distracting audits and issues of proof.

view full post >

The ASBCA and the Case of the Missing Contract

Posted on Wednesday, Jul 20, 2016

BY and

In most disputes before the Armed Services Board of Contract Appeals (“ASBCA”), there is a basic assumption that no one ever thinks about — the existence of a contract. And why would you think about it? After all, it’s hard to imagine a Board of Contract Appeals without the Contract. That’s like Whole Foods without the food. General Motors without the motors. Coca-Cola without the, well, Coca-Cola! The two just go together without ever having to think about it. Until now.

The Appeal of Black Tiger Company, ASBCA No. 59819, arose out of Black Tiger’s allegation that it had not been paid for equipment it provided to the Army under Contract No. W91GXE-11-P-0083. The Government filed a motion to dismiss the appeal due to one major problem with Contract No. W91GXE-11-P-0083 — it does not exist. An Army Contracting Officer averred “that he had searched various government contract retrieval and archival systems but had been unable to find any information related to the contract documents submitted by appellant.” The Government therefore contended that the ASBCA lacked jurisdiction over the appeal under the Contract Disputes Act (“CDA”).

The CDA describes the burden an appellant must satisfy to establish ASBCA’s jurisdiction: “The Armed Services Board has jurisdiction to decide any appeal from a decision of a contracting officer of the…Department of the Army…relative to a contract made by that department or agency.” This burden does not require that the appellant prove a contract actually exists, but rather, under the CDA, an appellant “need only allege the existence of a contract to establish the Board’s jurisdiction.”

Here, Black Tiger filed a properly certified claim on February 3, 2015. And, Black Tiger’s notice of appeal included a contract number; an SF 1449 that identified appellant on the first page as the contractor; and a document appellant asserted was an invoice for the equipment provided under the contract. As a result, ASBCA denied the Government’s motion to dismiss, holding that the question of whether a valid contract exists goes to the merits of the appeal and does not affect ASBCA’s jurisdiction over the appeal. So while a contract will be required to get relief, the contract is not required to start the ball rolling.

view full post >

RELATED PROFESSIONALS