Construction and the legal matters surrounding it can be a tricky situation. Sometimes the difference between ” intending to file a claim” and “filing a claim” can make or break a suit. Don’t let yourself get into this situation and be sure to get professional legal help if you run into any kind of issue on the job.
Words matter. Grammar matters. Even punctuation matters:
For one government contractor, its claim was recently rejected by the Civilian Board of Contract Appeals because the Board found that the Contractor did not properly state its claim. In Construction Group LLC v. Dept. of Homeland Security, 15-1 BCA para. 35900 (Mar. 5, 2015), aff’d, CBCA 4459-R (Apr. 22, 2015), the Board dismissed the case for lack of jurisdiction because no underlying claim or contracting officer decision existed.
The Dispute. The US Coast Guard awarded a $500,000 contract to Construction Group LLC to restore a pump station and perform certain electrical repairs. Almost six months after completion of the project, the Contractor wrote a note to the contracting office, “advising [her] of [its] intent to submit a claim arising under and relating to the . contract.” Two months later, the Contractor again told the contracting officer that “it is our intent to submit a claim” for certain re-work that had been performed. Almost a year after its first letter, the Contractor wrote that it was making a claim “to modify, reform and renegotiate the contract,” but it did not attach any claim to the letter. More than two years after completion of the project, the contracting officer wrote a letter, closing out the contract.
The Result. The Contractor filed an appeal from the contracting officer’s close-out letter. The Department of Homeland Security objected to the appeal on the basis that the Board lacked jurisdiction since there was never any official claim submitted by the Contractor. The Board rejected the appeal, noting the following:
Here, it is clear that neither the contractor nor the Government has made a claim. We understand that Construction Group is upset with the Coast Guard’s determination that all work done under the contract was satisfactory . . . . The contractor has on several occasions manifested an intent to make a claim or claims under the contract, but the record contains no evidence that any such claim was ever made.
So What? As this case demonstrates, words do matter! Under the controlling law, a claim is “a written demand or written assertion . seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract.” Stated differently, an “intent to file a claim” is not the same as “claim is hereby made” when you are communicating with the contracting officer.