During the performance of a contract, unanticipated circumstances can arise which increase a contractor’s costs. Sometimes, the contract allocates the risk of the unexpected event as, for example, when a contract provides that the agency will bear the risk if a contractor encounters a differing site condition that increases the contractor’s costs. In other circumstances, a principle of common law establishes which party will bear the risk of an unexpected occurrence. For example, case law provides that an agency’s failure to disclose facts to a contractor can, in some circumstances, result in the agency’s bearing the risk of unanticipated performance difficulties that increase the contractor’s costs.

In Safeguard Base Operations, LLC v. United States, 2019 WL 3789887 (July 2, 2019), a protest to the U.S. Court of Federal Claims (COFC), the procurement was for dormitory services for the Federal Law Enforcement Training Center, U.S. Department of Homeland Security. The agency rejected an initial proposal because the submitter (and eventual protestor) failed to include in its price proposal several government-supplied “plug numbers”—i.e., pre-priced items for two contract line items (CLINs) X007AA and X007AB from the solicitation schedule.

Frequently, protesters will seek to supplement their complaints after the initial GAO protest submission. When protesters raise multiple rounds for complaint, the Government Accountability Office (GAO) will be guided by its bid protest regulations on timeliness under 4 C.F.R. § 21.2. These regulations do not contemplate “[t]he piecemeal presentation or development of protest issues.” Curtis Center Ltd. Partnership—Reconsideration, Comp. Gen. Dec. B-257863.3, 95-1 CPD 147.

The books are filled with decisions where a contractor filed a certified claim under the Contract Disputes Act (CDA), 41 U.S.C. chapter 71, for an equitable adjustment or other relief arising under or related to the contract. But is there ever a requirement for a contractor to file a certified claim in support of an affirmative defense to a government claim?

In June 2018, CACI, Inc., challenged the award of a $56 million task order to another offeror. CACI argued in part that the procuring agency, the General Services Administration (GSA), had engaged in unfair and misleading oral discussions with the protestor as compared with the eventual awardee, Digital Management, Inc. (DMI).