Counsel Commentary: Murky Waters

After a series of recent decisions, the U.S. Court of Appeals for the Federal Circuit has blurred the line between a request for equitable adjustment (REA) and a formal “claim” under the Contract Disputes Act (CDA). The U.S. Court of Federal Claims and the Boards of Contract Appeals are beginning to apply the Federal Circuit’s most recent guidance in decisions that examine if a contractor’s submission meets the criteria for a claim.

Whether a submission qualifies as an REA or a claim can have profound legal, practical and monetary consequences. In his monthly Contract Management Magazine column, “Murky Waters,” Rogers Joseph O’Donnell shareholder Stephen L. Bacon explains the Appeal of Mindseeker, Inc., one of the recent decisions from the Armed Services Board of Contract Appeals that applies the Federal Circuit’s guidance. He also discusses the pros and cons that contractors should consider when approaching a claim or REA, and how to distinguish between the two. 

“The Board’s decision underscores the highly factual nature of the inquiry into whether a submission qualifies as a claim or REA,” Bacon writes. “The Mindseeker decision is yet another illustration of what the Federal Circuit has now repeatedly affirmed: a submission labeled as an ‘REA’ or that the parties refer to as an ‘REA’ may nevertheless constitute a claim if all of the objective criteria for a claim are satisfied.” 

The piece, which appears in the magazine’s February issue (subscription required), is the latest entry in Bacon’s monthly Counsel Commentary column and is published by the National Contract Management Association. It was used with permission.

Read Bacon’s latest Contract Management article here.