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Crafting Compelling Contracting Officer’s Final Decisions
How to Write a Contracting Officer Final Decision for Government Contract Claims
by Christoph Mlinarchik, JD, CFCM, PMP | Owner, www.ChristophLLC.com
Include all the required elements of a Final Decision
The Contracting Officer’s Final Decision (hereafter “Final Decision”) is an incredibly important document because it is the Government’s initial response to a contractor’s claim under the Contract Disputes Act. It serves as the Government’s opening move in the claim process and sets the stage for future litigation. The Final Decision is binding and conclusive unless the contractor appeals it, so it deserves careful consideration.1
The Final Decision has five substantive requirements. It must (1) describe the claim or dispute, (2) refer to the relevant contract terms, (3) outline the facts, (4) state the decision and rationale of the Contracting Officer, and (5) advise the contractor of its appeal rights. The Final Decision must demand payment if it finds that the contractor is indebted to the Government. Finally, the Final Decision must be submitted to the contractor in writing.2
Shine the spotlight on the focal points
Beyond the skeletal requirements, flesh out the Final Decision to address only the relevant facts and claims. Contractors may include personal opinions or superfluous complaints about perceived mistreatment, but the Final Decision must only address proper claims under the Contract Disputes Act. The Final Decision should concentrate on the relevant disputes and dismiss non-justiciable complaints. Also remember that the Final Decision need not include specific findings of fact and that such findings are not binding in subsequent appellate proceedings, which will review the factual record denovo.3
Engage the entire acquisition team in the process
The initial, information-gathering stage of responding to a claim under the Contract Disputes Act is the ideal time to seek knowledge, advice, and insight from the entire acquisition team. At a
minimum, the Government attorney must play a significant advisory role in creating the Final Decision, and most Contracting Officers recognize this requirement of FAR 33.211(a)(2). Beyond legal assistance, do not neglect the expertise of other acquisition team members like engineers, logisticians, program managers, budget analysts, or auditors. Their expertise will provide specialized knowledge to compute expenses, compare the contractor’s performance to the contractual requirements, and analyze the sequence of events leading to the dispute. Contracting Officers need not operate in a vacuum, and indeed, they draft better Final Decisions in a collaborative environment.
In fact, FAR 1.602-2 mandates Contracting Officers to consider the advice of “specialists” as appropriate. Contracting Officers should seek assistance from any and all members of the acquisition team who can contribute.
Document, document, document
The Final Decision is the starting point for future litigation, so seize the opportunity to create a favorable record of documentation from the outset. Do not make the common mistake of relying upon oral communications in a Final Decision. Take the time to comb the record for written memoranda or emails that spell out the facts and background. Systematically arrange the documents in a way that allows a third party to grasp the factual background immediately. For relatively simple or onedimensional claims, chronological ordering is optimal. Multifaceted or especially complex claims may call for topical ordering.
Assemble all relevant documents in a single file. This will help the Contracting Officer craft a commanding argument that marshals the data in a logical and compelling sequence. An additional benefit to this early planning is that for future litigation, many of the necessary documents for a “Rule 4 file” will already be prepared should the contractor decide to appeal. (Named after the fourth court rule of the Armed Services Board of Contract Appeals, a Rule 4 file is a factual compilation of all documents the Government holds concerning the contract claim; in the Court of Federal Claims it is called the Administrative Record.) Plan, prepare, document, and organize as soon as possible to gain a tactical advantage in the claims process.
Always include boilerplate appellate rights language—verbatim
FAR 33.211(a)(4) requires specific language to be included in all Final Decisions. This language outlines the contractor’s rights to appeal, so it should be included verbatim. Do not be fooled by the misleadingly permissive language of FAR 32.211(a)(4): “substantially as follows.” This is not the time to get creative. Use the boilerplate language, precisely as it is stated in the FAR, to avoid the risk of creating thorny procedural issues in future litigation:
“This is a final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision the appeal is taken. The
notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board’s small claim procedure for claims of $50,000 or less or its accelerated procedure for claims of $100,000 or less. Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in the Contract Disputes Act of 1978, 41 U.S.C. 603, regarding
Maritime Contracts) within 12 months of the date you receive this decision.”
Missing the mark on advising the contractor of appeal rights has serious consequences. If the rights notification is lacking, the “appeals clock” does not start yet because the Final Decision is deficient. The contractor would then have the opportunity to extend the appeals timeline by proving that its detrimental reliance upon the deficient Final Decision prejudiced its ability to appeal within the time limits.4
Comply with mandatory timelines to avoid “deemed denials”
Contracting Officers must be aware of the timelines for responding to claims under the Contract Disputes Act. FAR 33.211(c)(1) requires the Contracting Officer to issue a Final Decision on claims of $100,000 or less within 60 days of the contractor’s written request, or within a reasonable time if no such request is made. Within 60 days of claims exceeding $100,000, FAR 33.211(c)(2)(d) requires either a Final Decision or notification to the contractor of when the decision will be issued.5 If the Contracting Officer fails to comply with these mandatory timelines by not issuing a timely Final Decision, this inaction can be construed as a “deemed denial.” A “deemed denial” is treated the same as an actual denial and opens the door for appeal to the Armed Services Board of Appeals or the Court of Federal Claims.6
A “deemed denial” severely prejudices the Government’s position because it forgoes a valuable opportunity for initial claims review. The Final Decision is a powerful tool to frame issues for future litigation; to skip this process is a procedural blunder that must be avoided. A comprehensive Final Decision will include relevant facts, evidence, and authorities to buttress the Government’s argument for disposition. A “deemed denial” precludes this documentation, instead requiring it to be proffered later as part of the litigation process. As soon as a claim is received, the Government attorney and the Contracting Officer should consider the mandatory response timelines. Set strict deadlines for gathering documents, questioning acquisition team members, and writing and editing the Final Decision.
Use Aristotelian syllogisms for persuasive advocacy
Aristotle invented the syllogism—a well-structured and powerful method of argumentation that gracefully guides the reader to a convincing conclusion. Use this rhetorical device to streamline, simplify, and strengthen the focal points of the Final Decision. Aristotelian syllogisms follow a basic formula: major premise or rule, minor premise or facts, and a conclusion that follows necessarily from the premises. This formula can be custom-tailored for Final Decisions in Government contract disputes.
The major premise is a citation to a regulation, statute, or federal case law. The minor premise outlines the factual scenario involving the contractor. The conclusion or “takeaway” is the most important part. It follows as a logical consequence from the synthesis of the rule and facts. No further argumentation is necessary because the initial premises provide all the logical groundwork.
As an example, consider a scenario wherein the contractor fails to deliver and blames the default on rainy weather, claiming that it is an excusable delay. One section of the Final Decision will prove that the default is not covered by the Excusable Delays clause. Major premise: The Excusable Delays clause, FAR 52.249-14, provides that contractors shall not be in default if the failure to deliver is due to unusually severe weather (rule). Minor premise: Two consecutive rainy days in Seattle, Washington is not unusually severe weather (facts). Conclusion: Therefore, the contractor’s failure to deliver is a default under the terms and conditions of the contract and is not excused by FAR 52.249-14.
This method of writing is clear, concise, convincing, and commanding. The conclusion rests upon controlling authority and follows from an orderly chain or thought. Writing with precision, logic, and persuasion illuminates the arguments, provides a roadmap for the reader, and brands the Final Decision as the product of a professional.
CHRISTOPH MLINARCHIK, JD, CFCM, PMP is an attorney, expert witness, consultant, professional instructor, and author of 50+ publications on contract law and acquisitions. As owner of Christoph LLC, he teaches courses and advises on contracting, source selections, proposals, bid protests, and government contract law to federal, military, and private industry professionals nationwide—from novices to C-level executives. Christoph was a senior contracting officer for the Department of Defense and has Defense contracting experience across the Air Force, Navy, Pentagon, and Office of the Secretary of Defense. He also previously served as an Air Force JAG acquisitions attorney. Christoph was recently honored with the “Top Professionals Under 40” award by National Contract Management Association. Christoph LLC is available for consultation, advice, and in-house training about Federal contracting topics, including source selections, proposals, government contract law, bid protests, and more. Visit www.ChristophLLC.com or email Christoph@ChristophLLC.com for details.
1 41 U.S.C. §605(b).
2 41 U.S.C. §605(a); FAR 33.211(a)(4)(i)-(vi).
3 41 U.S.C. §605(a); 41 U.S.C. §609(a)(3); see also Wilner v.
United States, 24 F.3d 1397 (Fed. Cir. 1994)(admissions favoring contractor are not evidence of Government liability), citing Assurance Co. v. United States, 813 F.2d 1202 (Fed. Cir. 1987).
4 See Decker & Co. v. West, 76 F.3d 1573 (Fed. Cir. 1996).
5 41 U.S.C. §605(c).
6 41 U.S.C. §605(c)(5); FAR 33.211(g). See Aerojet Gen. Corp.,
ASBCA No. 48136, 95-1 BCA ¶27,470.