Okay, so you think I went to San Francisco just to get some good eats. Not true. I also went for the program. The panel of speakers at the the mid-winter conference of the ABA’s Forum on the Construction Industry was packed with some great government contracting professionals.
To me, some of the best words of wisdom came from the Honorable Steven Reed, a former judge of the Armed Services Board of Contract Appeals who now practices in the Washington, DC office of Smith, Currie & Hancock LLP.
Judge Reed’s talk focused on the alternative dispute resolution process and, more specifically, "… the practical side of developing the contractor’s story in support of a claim." Some of Judge Reed’s best tips:
- The big picture: Contractors must anticipate the possibility (if not the probability) of disputed matters. Prevention and preparation are essential to a favorable outcome.
- Documentation: "Daily reports are generally required under Federal contract. They "should contain facts … not feelings or emotions." (Don’t call the project manager a "jerk" in the project documents, even if he is one.) Rather, use the daily report as an "opportunity to create a comprehensive record of performance."
- Claim proof: "Your contractor client will absolutely need its bid papers for evidence in claim against Government." It’s a no-brainer, but you need a good document management process in place.
- Dispute forum: Picking a forum for resolving your dispute is strategic. For example, a decision from the Board of Contract Appeals will be "predictable" and the process is more "stable" while the Court of Federal Claims will be more "rule bound." The forum is also important because the Court has certain jurisdiction over fraud claims, while the Boards do not.
Judge Reed concluded his written presentation with sound advice: "Contractors need to be educated, prepared, aware, and well-represented."